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Experts and Ethics
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Should an expert be sued simply for changing his mind? Or does an
expert's obligation to the truth provide protection against such
suits?
These are
the troubling questions raised by a recent decision of the 10th U.S. Circuit
Court of Appeals allowing a lawsuit to proceed against a doctor whose change
of heart on the eve of trial contributed to dismissal of a medical malpractice
claim.
The opinion
never decides the question of expert immunity, instead remanding the case to
the trial court to consider the issue. But a strong dissent says that sets
a dangerous precedent.
"Allowing
this claim to march along sends the message to would-be expert witnesses: Be
wary – very wary – of changing your mind, even when doing so might
be consistent with, or compelled by, the standards of your profession," writes
Circuit Judge Neil Gorsuch in disagreeing with his colleagues on the three-judge
panel.
Edward P.
Richards, law professor at Louisiana State University's Law Center
and director of its Program in Law, Science and Public Health, says
he is troubled by the case for its suggestion that experts should be expected
to deliver pre-packaged opinions.
"We
have the fiction that the expert is there to give an opinion on the
truth, but it is 'advocacy truth,'" Richards says. "If we allow lawsuits
such as this against the experts, is the cause because the expert
didn't testify to what you needed?"
If anyone
should be sued under these circumstances, it is the attorney who
hired and prepared the expert, Richards believes. "The lawyer should
bear responsibility for the preparation of witnesses.
If the witness fails, then we should be looking to the attorney,
not the witness."
Change of Mind
This would
not be the first case to allow a party to sue its own expert witness. Courts
in at least seven states have allowed such actions. But while these
other cases all alleged negligence by the expert in reaching an opinion, the
10th Circuit opinion involves an expert who changed his opinion after learning
additional facts.
The plaintiffs,
Thomas and Karol Pace, had retained Dr. Barry N. Swerdlow as an expert in their
Utah state court case against the doctors who treated their daughter shortly
before she died. After reviewing the medical records, Swerdlow filed an affidavit
that the doctors had breached their duty of care by releasing the Paces' daughter
rather than monitoring her overnight.
At Swerdlow's
deposition in the med-mal case, he testified under intense questioning that
he had not seen the defendant doctor's deposition or even known of it, describing
himself as "a relative novice" in serving as an expert.
Afterwards,
he obtained the transcript of the doctor's deposition as well as of the depositions
of two nurses. When sent his own deposition to review, he drafted and attached
a two-page "addendum" saying that, having reviewed the transcripts,
he now believed the med-mal defendants had acted within their standard of care.
He sent the addendum simultaneously to counsel for both sides.
With trial
a week away and a summary judgment motion pending, plaintiffs' counsel sought
to withdraw the expert and obtain a continuance. Instead, the trial court granted
summary judgment for the defendants, noting that Swerdlow's testimony and addendum
failed to provide grounds to support malpractice.
With their
case dismissed, the Paces sued their former expert in Utah state court. He
removed the case to federal court, where he asked to have it dismissed based
on the principle of witness immunity and on other grounds. The federal court
granted the motion to dismiss, not on the grounds of immunity, but because
the expert's change of opinion was not the proximate cause of the earlier case's
dismissal.
The 10th
Circuit reversed, concluding that the plaintiffs had alleged sufficient facts
to survive summary judgment. Because the district court never addressed the
immunity issue, the Circuit Court said it would be free to do so on remand
or to certify the question to the Utah Supreme Court.
A Troubling Message
In
his dissent, Judge Gorsuch notes that witness immunity is an open question
in Utah. But even if the state were to allow such a suit, he argues, it
would have to allege some degree of malpractice – not "an innocent
and professional reassessment of his expert opinion."
By allowing
the case to go forward without proof of malpractice, the majority is sending
a troubling message to experts that they had better not change their minds,
Gorsuch contends.
"In
our legal system, demanding that experts 'deliver' a specified opinion, as
opposed to their honest judgment, is supposed to be ethically out-of-bounds – not
the basis for a cause of action," he writes.
"The
loser in all this is, of course, the truth-finding function and cause of justice
our legal system is designed to serve."
Is Legislation
Needed?
Ted Frank, director of the American Enterprise Institute Legal Center
in Washington, D.C., and contributor to the
popular legal blog Overlawyered.com,
believes that Judge Gorsuch is correct in his analysis. "The incentives
of expert witnesses to give independent truthful opinions are already
distorted, and should not be distorted further."
Beyond that, the court appears not to have thought through the
consequences of its decision, he says. "Every cross-examination
of an expert at deposition should now include questions relating
to the expert's fear of being sued."
But Peter J. Krumholz, a litigation partner with the Denver firm
Hale-Friesen and contributor to the Rocky Mountain Appellate Blog,
says he has no problem with the 10th Circuit's opinion from a policy
perspective.
"Neither the majority, nor Judge Gorsuch in dissent, really discussed
the applicability of the witness immunity doctrine – nor are they
particularly well-suited to do so, since it's a state law issue."
While the district court may end up certifying the immunity question
to the Utah Supreme Court, he adds, the issue of expert witness
immunity may ultimately be one for state legislatures to decide.
Tell us what you think about the issue.
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