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Captain Corcoran was never, never sick at sea. Well, hardly ever—as audiences familiar with Gilbert and Sullivan’s beloved 1878 comic opera H.M.S. Pinafore know so well. Indeed, they eagerly await the moment early in the opera when, challenged in song by his gallant crew, the ship’s posturing commander confesses that he might occasionally succumb to seasickness, after all.
Later in the same musical number, when Corcoran also claims to “never use a big, big D”—swear, in other words—the chorus of sailors is again skeptical, prompting cross-examination that elicits another admission of fallibility.
False or misleading testimony. Ruined credentials at a critical moment. (The captain is eventually revealed to be a lowly able seaman who was accidentally switched at birth with another character in the play.) For all the mirth and silliness of W.S. Gilbert’s plot (set to Arthur Sullivan’s lively score), there’s something uncomfortably familiar in the tale for those in the legal profession.
What happens, for example, when a friendly expert witness is negligent in performing or misrepresents his or her qualifications so badly that the case is lost? In such instances, the curtain can rise on an entirely different sort of spectacle—one with far more drama than merriment.
Several recent cases call attention to how friendly expert testimony can prompt unintended consequences.
In November 2013, a proposed investor class action against Deutsche Bank AG was tossed out after the defense persuaded a federal judge in Manhattan that the evidence given by an expert witness for the plaintiff was faulty and unreliable. “U.S. District Judge Katherine Forrest didn’t just find flaws in the methodology employed by the expert,” it was reported. “She also took issue with [the expert’s] credibility.”
Indeed, in her ruling Judge Forrest noted that the witness had once worked with an individual whose career ended after pleading guilty and going to jail for submitting false declarations and taking secret success payments in connection with various securities class action suits. Out of a job, the witness had started his own firm and continued to provide sworn declarations for clients.
At the evidentiary hearing, the court found expert witnesses for the defense to be consistent, articulate, responsive and credible, in contrast to the expert for the plaintiff. In fact, Judge Forrest went so far as to declare the latter “unqualified” to testify and, rather disparagingly, simply “an expert in plaintiffs’ securities cases.”
Interestingly, the decision favoring Deutsche Bank was not the first such ruling by Forrest. In May 2013, she denied class certification in a lawsuit by shareholders against China Automotive Systems, Inc. on similar grounds, citing flawed analysis underlying testimony by an expert witness for the plaintiffs.
In another case from 2013, a Philadelphia judge granted a new trial in a medical malpractice case concerning an alleged delay in diagnosing lung cancer after an expert witness for the defense testified (contrary to the court’s pretrial order) that the plaintiff was a smoker. The expert’s testimony also resulted in a motion for sanctions, leaving open whether defense counsel, her client and the expert should pay more than $800,000 in attorney fees, costs and expenses incurred in the initial trial.
Such cases illustrate not only the perils of relying on expert witnesses, but also the potential risks when attorneys rely on individuals who have not been thoroughly vetted.
What attorneys and their clients are often left to ponder is whether they can sue their friendly experts for breach of contract or professional malpractice when the experts or their sworn statements are discredited.
For many years, the answer to the question concerning expert liability stemming from judicial proceedings was a firm “No,” given that states followed the common law doctrine that provided absolute immunity in witness testimony.
The U.S. Supreme Court had weighed into the matter in Briscoe v. Lahue, 460 U.S. 325 (1983), declaring that fact witnesses in criminal proceedings also have immunity. The principle was expanded over time to cover expert witness testimony as well.
However, that protection has slowly eroded, and now a handful of states—including California, Connecticut, Louisiana, Massachusetts, Missouri and Pennsylvania—allow malpractice claims against friendly expert witnesses. In addition, other states (New Jersey and Vermont) have held that court-appointed expert witnesses may face liability for negligent performance of their professional duties.
States have also dealt with the issue of suing an adverse expert witness (New Jersey and West Virginia), while others have addressed attorney liability stemming from expert witness negligence (California and New York).
On the other hand, as recently as 2011, states such as Michigan and Tennessee have ruled in favor of preserving expert witness immunity (although that protection in Michigan relates to testimony in judicial proceedings but not underlying opinion).
The current split in jurisdictions doesn’t alter an important fact for many expert witnesses. Even where traditional expert witness immunity is preserved, they are not completely removed from consequences. As the witness consulting services industry has developed and matured over the past few decades, the role of professional associations and others exercising oversight and scrutiny of their members has also expanded.
In 1983, for example, the American Association of Neurological Surgeons (AANS) began monitoring participation in judicial proceedings by its members, and established standards of conduct as well as sanctions for improper expert testimony. Other medical societies followed the association’s example. So, too, did professional organizations from other disciplines.
The legality of such professional oversight has been challenged—and, so far, affirmed. In fact, the first test involved a surgeon who was suspended by the AANS as a result of his testimony in a medical malpractice suit. In June 2001, the Seventh U.S. Circuit Court of Appeals ruled in favor of the AANS and held that a professional society could discipline a member for improper testimony.
Regardless of whether an expert is exposed to the possibility of sanctions handed down by a professional body, most attorneys would agree that those who take on the role of expert witnesses owe a duty of care to their clients, as well as an overriding duty to the courts.
But whether that duty should also include a civil liability for incompetence or other unprofessional conduct is largely still open to debate.
Some in the legal profession might like to see a further erosion of expert witness immunity. A few might even advocate following the lead of the United Kingdom, for example, where the Supreme Court there in 2011 abolished a 400-year-old rule giving experts complete immunity from claims.
Yet an unsettling implication of expanding civil liability for expert witnesses is that attorneys may be increasingly exposed to accusations of legal malpractice as a result. If the expert was negligent, it could be argued that so, too, was the law firm that hired him or her.
Indeed, for those who would oppose expanding civil liability for expert witnesses, the status quo reflects enough of a shift in the legal landscape. In the United States today, an expert witness has complete immunity and is never—never—held liable for negligence or professional malpractice.
Well, hardly ever.
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