Think Experts are Immune from Liability Think Again

By Robert Ambrogi Esq

When the U.K. Supreme Court overturned 400 years of legal precedent earlier this year and ruled that expert witnesses could be sued for negligence, many experts on this side of the pond let out a collective sigh of relief, confident that it couldn’t happen here.

After all, as recently as 1983, the U.S. Supreme Court, in Briscoe v. LaHue, reaffirmed the inviolability of the principle of witness immunity. “A witness' apprehension of subsequent damages liability might induce two forms of self-censorship,” the court reasoned. “First, witnesses might be reluctant to come forward to testify. … And once a witness is on the stand, his testimony might be distorted by the fear of subsequent liability.”

Briscoe involved the testimony of a police officer, not an expert. But the opinion was sweeping in its application of immunity to “all persons” who are “integral parts of the judicial process” – witnesses, judges and counsel.

Still, the U.K. decision, Jones v. Kaney, continues to elicit reactions from bloggers and legal commentators in both the U.K. and the U.S. One expert, in an op-ed published in the Canadian legal newspaper Law Times, praised the ruling in Jones, saying he would welcome a similar rule in Canada. “Bring it on,” he wrote.

As it turns out, however, U.S. courts began chipping away at the doctrine of expert immunity well before their U.K. counterpart ever contemplated the question. While witness immunity stands strong in the federal courts, a handful of state courts have lowered the shield that protects experts from liability, allowing them to be sued in actions for professional malpractice.{C}

Suits Against ‘Friendly’ Experts

Notably, these cases against experts are brought not by disgruntled opposing parties. Rather, it is the very parties who retained the experts who are suing them. Plaintiffs are bringing these lawsuits against so-called friendly experts – meaning the same experts they once selected and retained – alleging that they were professionally negligent in their trial testimony or trial preparation, or altered their opinions late in the case.

The basic theory underlying these lawsuits is this: As professionals who voluntarily become involved with the legal system for pay, experts deserve no special protection; rather, they should be responsible for their actions – and for their mistakes – to the same extent as other professionals.

One of the leading cases allowing an action for expert malpractice is LLMD of Michigan, Inc. v. Jackson-Cross Co., decided by the Pennsylvania Supreme Court in 1999. Brought by a corporation against its former expert, it followed from an earlier breach-of-contract lawsuit in which the corporation sued a defendant for its failure to provide financing for an industrial real estate project.

In the earlier action, the corporation retained the chairman of an industrial real estate brokerage firm to provide testimony on lost profits. The expert provided calculations showing the lost profits to be $6 million. But on cross-examination, the calculation was shown to contain an error that completely undermined the result. The expert then revealed that he had delegated the calculation to an employee in his firm, so he was unable to explain or correct the error. The judge struck the expert’s testimony and the corporation ended up settling for substantially less.

The corporation then sued the expert for professional malpractice, alleging that he had failed to exercise the degree of care and skill ordinarily exercised by experts in the field of real estate counseling and in the computation of lost profits in real estate transactions. The expert moved to dismiss the action on the grounds of witness immunity. The judge refused to dismiss the case and the expert appealed.

In its opinion on appeal, the Pennsylvania Supreme Court confirmed that witness immunity remained a doctrine firmly embedded in the state’s courts. The doctrine protects all witnesses, including experts who render an opinion, the court explained.

“It is imperative that an expert witness not be subjected to litigation because the party who retained the expert is dissatisfied with the substance of the opinion rendered by the expert,” the court said. “An expert witness must be able to articulate the basis for his or her opinion without fear that a verdict unfavorable to the client will result in litigation, even where the party who has retained the expert contends that the expert's opinion was not fully explained prior to trial.”

Even so, the court went on to rule that the doctrine should not be applied to protect an expert who is negligent in arriving at his or her opinion. “The judicial process will be enhanced only by requiring that an expert witness render services to the degree of care, skill and proficiency commonly exercised by the ordinarily skillful, careful and prudent members of their profession.”

Expert Malpractice in Other States

While the LLMD opinion stands as a leading example of expert witness malpractice, Pennsylvania is neither the only state to allow such actions nor the first. Texas was the first state to open the door to these actions, when its Supreme Court held in the 1982 case James v. Brown that psychiatrists testifying in mental health proceedings do not have blanket immunity from civil liability.

Other states that have allowed such lawsuits to proceed include California, Connecticut, Missouri and New Jersey.

So for any U.S. experts who are thinking about their U.K. colleagues with a sense of comfort that what happened in Jones v. Kaney will not happen here, perhaps they should think again. Even though expert immunity has eroded in only a small minority of states, there is no reason to believe that what happened in Britain will stay in Britain.

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.

Get the best expert

Fill out the form and one of our representatives will be in touch with you shortly. Or, you can call or email us directly.