In addition to their work for their own clients in their own areas of expertise, some professionals also serve as expert witnesses in litigation.  They employ their knowledge and experience in their chosen field to analyze issues and render opinions for one or more parties to a lawsuit.  Like in any other aspect of their work, a professional serving as an expert can act negligently and make mistakes.  Sometimes these mistakes cause litigation problems for the party the professional has been retained to assist.  What happens when the professional is sued for his or her work as an expert?  What are the public policy implications of holding an expert witness liable for mistakes made in the litigation or conversely rendering the witness immune from suit?

A professional generally owes his or her client a duty of care to use the same amount of care, skill and proficiency commonly used by ordinarily skillful, careful and prudent professionals in the professional's community. See, e.g., Michaels v. CH2M Hill, Inc., 257 P.3d 532, 542 (Wash. 2011); Murphy v. A.A. Mathews, a Division of CRS Group Engineers, Inc., 841 S.W.2d 671, 674 (Mo. 1992).  Clearly, a professional retained to perform work as an expert witness in litigation owes his or her client a duty of care – a duty that can certainly be breached.

Some jurisdictions, however, have held that an expert witness's actions and testimony performed during the course of litigation are privileged.  In those jurisdictions, that privilege derives from the doctrine of witness immunity.

The Doctrine of Witness Immunity

As the Missouri Supreme Court has noted: "An immunity is a freedom from suit or liability.  The underlying premise of all immunities is that 'though the defendant might be a wrongdoer, social values of great importance require[d] that the defendant escape liability.'" Id. (quoting Prosser and Keeton on Torts 1032 (5th ed. 1984)).  The immunity for witnesses in judicial proceedings from liability for damages related to their testimony originated in English common law.See Briscoe v. LaHue, 460 U.S. 325, 332 (U.S. 1983)(citation omitted).  The basis for the immunity was the concern that, if subject to subsequent liability, a witness may self-censor his or her testimony – either by altering their testimony for fear or liability or failing to appear to testify at all. Id.  This is not to say courts have not considered the potential for harm resulting from false testimony.  Rather, courts have noted that the reliability of a witness's testimony "is ensured by his oath, the hazard of cross-examination and the threat of prosecution for perjury." Bruce v. Byrne-Stevens & Associates Engineers, Inc., 776 P.2d 666, 667 (Wash. 1989) (citing Briscoe, 460 U.S. at 332).

The immunity first arose in the context of defamation actions based on statements made by witnesses or other parties in the context of a court proceedings. Murphy, 841 S.W.2d at 675.  Different jurisdictions, however, extended the immunity in varying degrees based on the circumstances of the defamatory statement. Id. at 675-76.

Does the Doctrine Apply to Expert Witnesses?

The Seventh Circuit Court of Appeals has noted that witness immunity is particularly designed to protect and encourage disinterested lay witnesses. MacGregor v. Rutberg, 478 F.3d 790, 792 (7th Cir. 2007).   The court noted that because "they have no stake in the case and cannot be paid more than a nominal fee for testifying, [lay witnesses] would be highly reluctant to testify if the threat of a defamation suit hung over their heads." Id.  But what about an expert witness hired specifically to provide opinion testimony in a judicial proceeding?  Are they entitled to the same protection?

The Majority View Is No Immunity

The majority of courts to consider the issue in that context have held that so-called "friendly experts" are not entitled to blanket immunity for their work in preparing and communicating their opinions in litigation.  See, e.g., Marrogi v. Howard, 805 So. 2d 1118, 1128-29 (La. 2002).  InMarrogi, the Supreme Court of Louisiana analyzed whether the policy arguments used to justify the witness immunity doctrine apply in the context of a claim against an expert hired by the plaintiff in the underlying matter. It noted that the objective of encouraging forthright testimony in court "is not advanced by immunizing the incompetence of a party's retained expert witness simply because he or she provides expert services, including testimony, in relation to a judicial proceeding." Id. at 1131.

Some of the courts that have held that hired experts are not immune from suit by their client have based their reasoning on the distinction between the expert's testimony and the work leading up to that testimony.  In Pollock v. Panjabi, 781 A.2d 518 (Conn. Super. 2000), the court held that an expert witness was not entitled to such immunity, noting that the plaintiffs were not complaining about what the expert said; rather, the plaintiffs asserted that their hired expert failed to "perform work as agreed upon, according to scientific principles as to which there are no competing schools of thought." Id. at 525-26; see also Murphy, 841 S.W.2d at 680-81("These experts do not usually act solely as witnesses, but perform substantial pretrial work.").  The court held that there must be a nexus between the claimed immunity, the fact-finding function of the court and the interest in having the expert speak freely. Id. at 526.

California also recognizes the exception of friendly experts from the protection of witness immunity.  In Mattco Forge, Inc. v. Arthur Young & Co., 5 Cal. App. 4th 392 (1992), the court held in favor of the plaintiff company which had sued experts it hired to perform litigation support accounting work. The plaintiff's underlying suit was dismissed allegedly based on negligent work performed by the experts. Id. at 395-96.  In its opinion, the court raised the issue of access to the courts as a policy reason in favor of the exception. Id.at 403-04.  Citing the facts of the case before it, the court reasoned that if an expert's negligence caused dismissal of the client's suit before trial, granting immunity to that expert would not expand access to the courts. Id. at 404.

The Minority Viewpoint: Immunity For Friendly Experts

While the majority of jurisdictions to consider the issue have found that expert witnesses should not be immune from suit by their client for negligence, some courts have reasoned that the immunity should attach in such situations.  The most prevalently cited opinion on this side of the issue is Bruce v. Byrne-Stevens & Associates Engineers, Inc., 776 P.2d 666 (Wash. 1989).  In that case, the Supreme Court of Washington held in favor an engineer sued by a client for negligently rendering opinions on damages issues in prior litigation.  In addressing many of the same policy issues discussed in the cases listed above, the Bruce court found that immunity of experts would encourage them to be more careful in their work and result in more reliable testimony. Id. at 670.  It stated:

Civil liability is too blunt an instrument to achieve much of a gain in reliability in the arcane and complex calculations and judgments which expert witnesses are called upon to make.  The threat of liability seems more likely to result in experts offering opinions motivated by litigants' interests rather than professional standards and in driving all but

the full-time expert out of the courtroom.

Id.  The court also discussed the alleged distinction between the expert's testimony and the work leading up to the testimony. It held that to grant immunity solely to the expert's testimony but not to the basis for that testimony would undermine the policies underlying the immunity in the first place. Id. at 672; see also Panitz v. Behrend, 632 A.2d 562, 565 (Pa. Super Ct. 1993).

Some courts have held in favor of an expert witness who has failed to provide helpful testimony to his or her client at trial, though not based on the doctrine of witness immunity.See Griffith v. Harris, 116 N.W.2d 133, 135 (Wis. 1962)(noting that "a contract [between a party and a witness] creating an obligation not only to appear but also to testify in a certain manner on behalf of a party to a lawsuit, is against public policy");Shaffer v. Donegan, 585 N.E.2d 854, 860 (Ohio Ct. App. 1990)(same); Curtis v. Wolfe, 513 N.E.2d 1139, 1141-42 (Ill. App. 1987)(same).

What About Immunity From Disciplinary Actions?

Even in jurisdictions that afford professionals witness immunity, the risk of a disciplinary action – as opposed to civil liability – may still exist.  In Kentucky State Bd. of Licensure for Professional Engineers and Land Surveyors v. Curd, -- S.W.3d --, 2012 WL 512403 (Ky. App. Feb. 17, 2012), the Court addressed the argument made by an engineer who had appealed a suspension handed down by his state's licensure board for giving dishonest testimony as an expert witness in a quiet title action.  Id. at *9-*10.  The engineer argued that subjecting experts to disciplinary action based on their testimony would affect experts' opinion and have a consequent chilling effect on the administration of justice. Id. at *9.  The Court rejected this argument, distinguishing between an expert being sued civilly and one being subjected to professional discipline pursuant to a state statute in administrative proceeding. Id.at *10.

Conclusion

While the majority of jurisdictions who have considered the argument have found no immunity for friendly experts, there is a valid position – outlined in the Bruce opinion – that immunity should apply if this issue arises in a jurisdiction that has been silent on the issue.  Because many courts have never expressed an opinion on the matter, the arguments raised in Bruce should be available to many attorneys defending professionals in this context.

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