Expert Was Free to Change his Mind, 8th Circuit Rules

By Robert Ambrogi Esq

When an expert has a change of mind about his or her own opinion, what does it mean to the case? A recent decision from the 8th U.S. Circuit Court of Appeals sheds new light on this recurring question. The issue is one that comes up with surprising regularity, sometimes with dramatic consequences.

Just last year, an article published here, An Expert’s Change of Mind Can be Shattering, reported on two high-stakes cases in which well-known expert witnesses – former September 11th Victim Compensation Fund administrator Kenneth R. Feinberg and former Securities and Exchange Commission Chairman Harvey Pitt – reversed gears on their own opinions.

Not only can an expert’s change of mind be devastating to a case, it can also potentially be risky for the expert. In an earlier article here, Whose Expert Are You, Anyway? Suing an Expert for Changing His Mind, we wrote about a decision of the 10th U.S. Circuit Court of Appeals allowing a lawsuit to go forward against a medical expert whose change of mind on the eve of trial contributed to dismissal of a medical malpractice claim.

Expert Modified His Opinion

By contrast, this latest case of an expert’s change of mind – David E. Watson, P.C., v. United States, No. 11-1589 (8th Circuit, Feb. 21, 2012) – had little drama and few repercussions. Unlike in those earlier cases, the expert here never turned about face on his own opinion; rather, he only modified it over time.

The case involved a lawsuit by the Internal Revenue Service against an accounting firm seeking to recover unpaid employment taxes under the Federal Insurance Contribution Act (FICA). At trial, the government’s expert, Igor Ostrovsky, presented his opinion concerning the fair market value of the accounting services provided by one of the accounting firm’s partners during the years at issue.

The trial judge accepted the expert’s opinion and rendered a tax deficiency judgment based on the expert’s valuation. The defendant appealed, raising several objections to the expert’s qualifications and testimony.

One of the defendant’s principle arguments on appeal was that Ostrovsky was not a competent expert witness because his opinion as to the value of the accountant’s services changed several times over the course of the litigation.

This assertion that the expert changed his opinion was true, the 8th Circuit found. Early in the case, the expert’s initial opinion put the fair market value of the accountant’s services at nearly twice the amount he testified to at trial. The expert changed his initial opinion after he later discovered errors in it and then learned new facts about the case that came out during the accountant’s deposition. Based on these discoveries, he revised his opinion and arrived at the figures he presented at trial.

This change of mind demonstrated that Ostrovsky was not competent to serve as an expert witness, the defendant argued. However, the 8th Circuit made short work of the defendant’s contention.

“The district court made a specific finding on this point and found Ostrovsky competent,” the court noted. “[Defendant] fails to cite any authority supporting its contention that Ostrovky's revised opinion rendered his testimony incompetent. In fact, it appears Ostrovsky properly updated his expert report, giving [defendant] ample notice of his revised opinions. … Under these circumstances, we see no reason why Ostrovsky's revised opinion would be incompetent.”

Also dismissing the defendant’s other grounds for appeal, the 8th Circuit affirmed the judgment of the district court.

Expert’s Duty to Supplement Opinions

There is no question that the 8th Circuit’s opinion in this case was correct. Rule 26(e)(2) of the Federal Rules of Civil Procedure expressly requires litigants to supplement their experts’ written opinions and deposition testimony when there are any additions or changes. Although the rule imposes the duty to supplement on the party to the lawsuit, it clearly creates a corollary duty on the expert to inform the party of any changes.

When IMS ExpertServices proposed a Code of Ethics for Expert Witnesses in 2010, the code expressly included this requirement. In describing the elements of professionalism expected of an expert witness, the code stated:

An expert witness shall update an opinion in light of new information if there is continuing reliance on the opinion. If an expert witness changes an opinion on a material matter after providing a report to the client, the expert shall promptly provide the client with a supplementary report explaining the change.”

In short, both the federal rule and common-sense standards of professionalism suggest that an expert has a continuing obligation to supplement his or her opinion based on new facts or new analysis. This duty applies even if the change of mind reflects a complete reversal of the expert’s earlier opinion.

Sometimes, an expert’s change of mind can be devastating to a case. However, this latest case illustrates what is the more typical outcome. The expert properly revised his opinion and the impact on the case was – as it should have been – negligible.

Tell us your stories about experts changing their minds in the midst of litigation.

Robert Ambrogi Esq

Robert Ambrogi Esq

We are proud to partner with an author of Bob’s caliber to provide exclusive articles for our legal clients and leading industry experts. Robert J. Ambrogi is a news media veteran and the only person ever to hold the top editorial positions at the two leading national U.S. legal newspapers, the National Law Journal and Lawyers Weekly USA. He is currently a Massachusetts lawyer who represents clients at the intersection of law, media and technology. He is also internationally known for his writing and blogging about the Internet and technology. Media and Technology Law Bob represents a range of businesses and individuals, concentrating in print and electronic media companies and the editorial, sales, marketing and technology professionals who work in them. He also counsels businesses and individuals in employment matters. Arbitration and Mediation An established professional in alternative dispute resolution, Bob has been an arbitrator since 1994, focusing on labor and employment and securities disputes. A mediator in a range of civil disputes, Bob completed the training required by Massachusetts law to protect confidentiality.

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