July 15, 2014
When an expert witness testifies and a case is lost, most people would believe, correctly, that the expert does not receive any blame, at least not in the legal sense. In fact, for years, the U.S. has followed a common law doctrine that quite simply did not allow expert witnesses to be the subject of civil lawsuits for alleged malpractice. However, a number of states and a few court cases have made this landscape shift just a little, and it’s important to know what the risks are for experts and the attorneys who employ them. See, e.g., “This is Real Law: Expert Witness Malpractice: Making the Case For—And Against—Civil Liability,” Lexis Nexis Editorial Team. Feb. 24, 2014.
In recent years, cases have arisen where the testimony of a friendly expert witness has been cited by a judge as not only lacking credibility but also being the reason why a particular case was thrown out. Twice in 2013, a New York District Court judge tossed plaintiffs’ cases on the grounds that the experts for the plaintiffs were unreliable and implicitly negligent in their testimony. Id.
These cases aren’t the only law on the books that speak to this issue: There are a number of states that now permit malpractice claims against expert witnesses, including California, Connecticut, Louisiana, Massachusetts, Missouri, and Pennsylvania. Id. In New Jersey and Vermont, court-appointed experts can be held liable for negligent performances, and New Jersey and West Virginia have even addressed the possibility of suing an adverse expert witness for allegedly giving negligent or improper testimony. Id.
The danger does not end with experts, however. If an expert is considered to lack credibility or reliability by a court, the risk exists that the attorneys who hire those experts could also be in jeopardy. Specifically, California and New York have already begun to address attorney liability from purportedly negligent expert testimony. Id.
The question is: Where are we now, and what can experts and attorneys do to avoid these potential consequences?
Throughout most of our judicial history, and even in the current majority of jurisdictions, experts cannot generally be sued for giving testimony, even if that testimony was cited as the reason a case was thrown out by a particular judge. However, that doesn’t mean the protection or witness immunity is absolute. To give an example, many professional organizations, such as the American Association of Neurological Sciences (AANS) have guidelines for their professionals concerning expert testimony. And, more importantly, the AANS was permitted to impose sanctions on one of its members for giving allegedly improper testimony in 2001. See Austin v. AANS, 253 F3d 967, 968 (7th Cir 2001). Great Britain even changed its national policies in 2011, doing away with complete immunity for expert witnesses.
The questions raised are simple: First, how probable is the erosion of expert witness immunity, and second, what should attorneys and experts learn from the recent case law and legislation?
The first question, fortunately, is fairly easily answered, for now. Except for the handful of states that have decided otherwise, expert witness immunity is fairly intact. Opposing expert witnesses are nearly never at risk for civil liability, no matter what the circumstances. Your retained experts, on the other hand, face a somewhat higher level of scrutiny, but still, the law is largely behind them. The age-old rationale of not penalizing a witness for giving potentially valuable testimony is largely intact, which should allow most experts and attorneys to breathe a collective sigh of relief.
The second question, however, is the one that is a bit more complicated, and that pertains to what attorneys and experts should do, considering the fact that a jurisdictional split on expert liability does exist and that the future is uncertain.
The best way to resolve this second issue may involve examining what gives rise to malpractice actions in the first place. Simply put, what rationale exists for malpractice complaints? The answer is what any plaintiff must prove to prevail in a negligence action: that someone owed someone else a duty of care, which was somehow violated, and that the violation resulted in a specific, quantifiable injury. As one legal team put it, “Regardless of whether an expert is exposed to the possibility of sanctions…most attorneys would agree that those who take on the role of expert witnesses owe a duty of care to their clients, as well as an overriding duty to the courts.” See “This is Real Law,” Supra. That duty of care is a simple one: a duty to testify truthfully, to the best of an individual’s knowledge and ability.
In general, it is difficult to prove malpractice by a witness ; moreover, the fact that a party is unsatisfied with the testimony an expert gave, or even with the result itself, is not proof of negligence or malpractice. Rather, as one publication explained, “As in other malpractice actions, it must be found that the expert performed below the standard for the profession [that the expert] represents, and that this substandard behavior caused the party’s injuries. Thus, the party claiming malpractice must show both the standard for such experts and that, but for the expert’s deviation from the standard, the party would have won.” Edward P. Richards & Charles Walter, “When are Expert Witnesses Liable for their Malpractice?”, Engineering in Medicine and Biology Magazine, Aug. 15, 2004.
Clearly, the burden to hold an expert accountable for negligence is a high one, so experts can rest assured that generally, their testimony will not give rise to a lawsuit.
However, two important lessons are to be learned from the current state of affairs regarding experts and malpractice.
First, it isn’t only testifying experts that may be at risk in the jurisdictions that do allow malpractice claims. Attorneys may be implicated, as well, for not vetting their experts properly or thoroughly enough. Moreover, as some legal analysts have noted, it isn’t only the testifying experts who owe a duty of care to clients and who may be implicated by civil suits. Consulting experts may also face liability; indeed, one analyst argues, “Allegations of misconduct in forensic exam, review of claims, filing of reports, or other extrajudicial practices may allow plaintiffs to get around the immunity protection afforded to experts who take the stand.” Kimberly Wittchow, “Forensic Consulting: From Immunity to Liability,” Risk Management, Summer 2003. Therefore, all experts, whether testifying or not, should be on notice, and attorneys should be as well.
More importantly, however, is what attorneys and experts should learn from the current splits in jurisdictions regarding immunity. The duty is clear: Understand that each expert (and, by extension, each attorney who retains an expert) owes a basic duty to perform their job in a professional manner, and that each client is owed that duty of care.
Although complete immunity for expert witnesses has eroded somewhat, the majority of jurisdictions still will not hold an expert accountable in a malpractice action, particularly if it is simply a matter of a dissatisfied client or someone who wishes the result of a particular case had been different. The lesson for attorneys is to be extremely exacting when in the process of selecting an appropriate expert. Attorneys should vet their experts carefully and, if they do perform their own due diligence in choosing a particular expert for a job, should rest assured that no liability will ensue. Expert witness service providers are a good place to start, as they have already performed a substantial amount of vetting, and they are well-seasoned in matching the right experts with the right attorneys. Taking advantage of these services and keeping their eyes open will go a long way towards protecting both the attorneys who retain needed experts and the experts who ultimately assist in a case.