When Experts Sue for Libel, Outcomes Vary

By Robert Ambrogi Esq
News reports over the summer carried four separate accounts of libel lawsuits brought by experts who contended that criticisms of them or their testimony were defamatory. These lawsuits are not just anomalies. Libel lawsuits by expert witnesses are surprisingly common, although their outcomes vary widely.

Over the years, experts have brought a number of defamation lawsuits relating to criticisms of their testimony. Some have been thrown out as lacking legal merit. Others have resulted in favorable jury verdicts and settlements.

One of the most recent cases is out of Canada, where an accident reconstruction expert has filed a lawsuit claiming that the opposing counsel in the case defamed him in an interview with a legal-affairs columnist for the Vancouver Sun.

During trial, the lawyer had mocked the expert’s testimony as absurd and compared him to the Johnny Carson character Carnac the Magnificent. Later, in the newspaper interview, the lawyer further mocked the expert and said that the jury had laughed at his testimony.

The expert’s lawsuit, filed earlier this month, claims that the lawyer’s words defamed him by implying that he is “unfit to provide forensic engineering and accident reconstruction services.”

Also this month, a federal judge in New York City allowed an art authentication expert to proceed with his libel lawsuit against the magazine The New Yorker.  Although the judge dismissed many of the expert’s claims, he allowed some of the libel allegations to proceed to trial.

The expert claims he was defamed by a July 2010 article that questioned his authentication methods and that alleged he knowingly sold fake art. While the article did not specifically criticize the expert for trial testimony, the expert has played a pivotal role in a number of legal disputes over works of art.

In June, a forensic pathologist defeated a motion to dismiss his libel lawsuit against a Wayne County, Indiana, prosecutor. Dr. Joseph Czaja alleges that prosecutor Mike Shipman defamed him by impugning his credibility in the news media after Czaja testified in a case that ended with murder charges being dismissed.

Czaja had testified that tissue and blood harvested from the victim’s body before his autopsy made it impossible for him to determine a cause of death with any degree of medical certainty. His libel case is now scheduled to go to trial next March.

It remains to be seen how these cases will turn out. But in June, an Ohio-based forensic expert agreed to a $100,000 settlement of his libel lawsuit against the judicial advocacy group The Innocence Project. Dr. Steven Hayne had sued the group in 2009 after it filed a complaint against him with the Mississippi State Board of Licensure. The group’s complaint alleged that Dr. Hayne routinely provided false and misleading autopsy reports and testimony.

Earlier, in a 2009 case, a Minnesota ophthalmologist, Charles Yancey, won a $350,000 jury award stemming from testimony he gave as an expert witness in a medical malpractice case.

After the defendant doctor in the med/mal case was found liable, he and his expert sent a letter to the American Academy of Ophthalmology accusing Yancey of deliberately misleading the jury with false information. Yancey sued them for libel and the jury awarded him $200,000 to compensate him for “future harm to his reputation, mental distress, humiliation, and embarrassment,” plus $150,000 as compensation for attorneys’ fees and costs.

In 2004, a San Francisco internist, Dr. John H. Fullerton, filed a defamation action against three Florida doctors who filed a professional misconduct complaint against him after he testified against them in a medical malpractice lawsuit. When the doctors won the med/mal case, they filed a complaint against the expert with the Florida Medical Association, alleging that he had given “erroneous opinions.”

Dr. Fullerton won a key victory in the case when a Florida appeals court rejected claims by the three defendants that they were immune from liability under the federal Health Care Quality Immunity Act. (As of 2009, Dr. Fullerton was still waiting for his case to go to trial. I have been unable to locate more recent updates.)

The expert in another Florida case did not fare so well. The expert, a neurosurgeon, sued the trial judge for defamation after the judge refused to allow him to testify. In making the ruling, the judge called the expert an "insidious perjurer" who "wouldn't know the truth if it leapt up and bit him on the ass."

In 2002, a Florida appeals court threw out the case as lacking legal merit. Even so, the court made clear that it did not “condone the language or procedure utilized by the trial judge.”

In another case that made news headlines, an expert witness sued famed trial lawyer Geoffrey Fieger for slander after Fieger called her “mentally unbalanced” and a “terrible witness” during an interview on Court TV. The trial judge dismissed the expert’s slander claim, finding that Fieger’s comments constituted colorful rhetoric, but not actionable slander. On appeal in 2003, the 9th U.S. Circuit Court of Appeals agreed, finding that Fieger’s comments “constituted an expression of opinion, constitutionally protected by the First Amendment.”

Tell us what you think: When should experts be allowed to bring actions alleging that criticisms of them or their testimony are defamatory? At what point do you think such criticisms cross the line?
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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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