States
that have considered the civil immunity of expert witnesses disagree
on the answer. While some say that immunity is essential to ensure an expert's
objectivity, others reason that shielding an expert may have the
opposite effect. Here is how the states line up.
Immunity for Experts
Washington. In Bruce v. Byrne-Stevens & Associates Engineers,
Inc., 113 Wash.2d 123, 776 P.2d 666 (1989), the state Supreme
Court held that witness immunity protected an engineering expert
witness from liability.
North Dakota. In Riemers v. O'Halloran, 2004 N.D. 79, 678
N.W.2d 547, 2004 ND 79 (N.D. 2004), the Supreme Court held that witness
immunity protected a forensic accounting expert from being sued.
California. In Mattco Forge, Inc. v. Arthur Young & Co.,
5 Cal. App. 4th 392, 6 Cal.Rptr.2d 781 (Cal. App. 1992), the court
ruled that witness immunity did not shield an accounting expert
witness from a claim for professional malpractice. More recently,
in Lambert v. Carneghi, ___ Cal.App.5th ___ (Cal. App.
1/11/08), the court refused to grant immunity to a real-estate
appraisal expert. In April, the California Supreme Court turned
down an appeal of that decision.
Connecticut. In Pollock v. Panjabi (Conn.Super. 2000) 781
A.2d 518, the court said that the policy of having witnesses speak freely
would not prevent a party's lawsuit against its own witness.
Louisiana. In Marrogi v. Howard, 805 So.2d 1118 (La. 2002),
the Supreme Court ruled that an expert who provided pretrial analysis
and litigation support services was not immune from suit.
Massachusetts. In Boyes-Bogie v. Horvitz & Associates 14
Mass.L.Rptr. 208, 2001 Mass. Super. Lexis 582 (Mass.Super.Ct. 2001),
a trial judge ruled that the doctrine of witness immunity did not bar
a negligence suit against an expert retained to provide litigation support
services.
Missouri. In Murphy v. A.A. Mathews, 841 S.W.2d 671 (Mo. 1992),
an en banc court held that an expert who provided negligent litigation
support was not protected by witness immunity.
New Jersey. In Levine v. Wiss & Co., 478 A.2d 397 (N.J.
1984), the Supreme Court ruled that a court-appointed accountant was
not immune from suit.
Pennsylvania. In Panitz v. Behrend, 632 A.2d 562 (Pa. Super.
1993), the court held that expert medical witnesses have absolute immunity
for their testimony. But in LLMD of Michigan Inc. v. Jackson-Cross
Co., 740 A.2d 186 (Pa. 1991), the Supreme Court ruled that the doctrine
of witness immunity did not bar a professional malpractice action by
the party who hired the expert.
Texas. In James v. Brown, 637 S.W.2d 914 (Tex. 1982), the
court held that a negligent diagnosis by a psychiatric expert may be
actionable.
One other state to have considered the issue is West Virginia. Although
not directly deciding whether to apply expert immunity, the Supreme Court
of Appeals ruled in a 2002 case, Davis v. Wallace, 65 S.E.2d 386
(W. Va. 2002), that a lawsuit brought by a party against its expert could
not be held to be frivolous or in bad faith, given the decisions from other
states allowing such suits.
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