A number of recent cases have involved experts walking out of deposition, switching sides or changing opinions at the last minute. Faced with these unfortunate circumstances, some upset clients and attorneys have turned to legal recourse and sued the experts involved.
Although most of these cases relate to negligence or defamation, there have been a few cases involving the fact-finding function an expert serves. In these cases, an expert flips her opinion to the other side based on the facts of the case.
In a BullsEye article earlier this year, Bob Ambrogi discussed experts who changed their minds after learning additional information. One of these experts honestly believed his opinion was valid until additional information was revealed in deposition that would negate his previous opinion. Faced with continuing to testify on a topic he no longer felt fully informed, the expert walked out of his deposition to reevaluate his opinion. At this late stage of litigation, the expert’s change of mind was shattering to the case.
10th Circuit Sends Mixed Message
In a similar situation a few years ago, an expert added an addendum to his opinion after deposition. When this case, Pace v. Swerdlow, reached the 10th Circuit, they ruled that an expert could be sued for changing his mind.
After the expert’s addendum caused the dismissal of the case, the clients sued their expert. The expert moved the case to federal court, where he asked to have it dismissed based on the principle of witness immunity and 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 the federal court’s dismissal, concluding that the plaintiffs had alleged sufficient facts to survive summary judgment. This ruling was made by a three-judge panel, but there was one strong dissent to the decision.
In his dissent, Circuit Judge Neil Gorsuch wrote, “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.”
He further stated, "The loser in all this is, of course, the truth-finding function and cause of justice our legal system is designed to serve."
Back in the district court, the case was ultimately dismissed but this case once again reminds experts that the threat of malpractice looms over their heads.
More Disclosure, Fewer Surprises
These completely avoidable situations resulted from experts who were not given all the facts until too late. When these facts come to light, the experts changed their minds and damaged the cases.
The solution is to provide all the relevant data to the expert at the earliest opportunity. One of our EliteXperts, Clifford Fry, listed document access as an expert’s top need in his article on how to best utilize a damages expert. No matter the subject area, an expert is attempting to evaluate numerous data sources to determine a complex solution. Being deprived of any element in this calculation is bound to result in erroneous answers that the expert later feels honor-bound to recant.
As one expert commented, “This is a touchy subject, especially for experts. I guess the moral of the story is to be sure your expert witness has all of the information they need in order to provide the most accurate opinion.”
Experts should be given all the data they need, plenty of opportunities to discuss their findings and a reassurance that they are, in fact, expected to do an independent analysis. After all, how can we expect experts to conduct independent reviews when the results of these fact-finding efforts may later get them sued?
Tell us: As an attorney, do you feel document access helps resolve these issues? As an expert, have you ever felt that you may be sued for your opinion?