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« George Will | Outcomes affect expert testimony »

October 18, 2004


"Should a right of action be recognized for expert malpractice?"

That's the question Peter Nordberg asks on Blog 702. In most states, experts are "immune from suit over legal claims arising from their testimony."

Before plaintiffs' lawyers answer yea, or defense lawyers answer nay, they should consider the possible effects of potential malpractice liability on the cost and quality of expert testimony. For example, if experts responded by protecting themselves through liability insurance, the cost of expert opinion would surely rise, and the insurers might well exert some pressure on experts to base their opinions on thorough and rigorous analyses. That might improve the general quality of expert evidence. Or it might just make experts likelier to practice "defensive testimony," or to retreat from the fray altogether.
Perhaps the tongue is in cheek, but the reasoning seems to me equally applicable to malpractice claims in general. It never fails to impress me how quickly attorneys recognize the costs of the tort system when it can negatively affect their own profession.

But more and more states are permitting expert witnesses to be sued for varying reasons; I count at least nine in a quick perusal of the literature. In 1999, Pennsylvania held that experts could be held liable for "negligent preparation of testimony"; one article on the subject recommends that experts "consider redrafting their retainer contracts to subject malpractice disputes to arbitration." (Edward P. Richards and Charles Walter, "When are Expert Witnesses Liable for their Malpractice?", 19 IEEE Engineering In Medicine And Biology Magazine #2, 107-109).

Washington state went in the other direction in Bruce v. Byrne-Stevens & Associates:

[I]mposing civil liability on expert witnesses would discourage anyone who is not a full-time professional expert witness from testifying. Only professional witnesses will be in a position to carry insurance to guard against such liability. The threat of liability would discourage the one-time expert--the university professor, for example--from testifying.
(Charles Patrick Ewing, "Suing your own expert witness: competing policies, uncertain law", Monitor on Psychology, Jan. 2001).

A similar issue is being litigated in Massachusetts, in the recently argued case of Kobrin v. Gastfriend, where a doctor is suing a doctor who testified against him in a peer review before the Board of Registration of Medicine. (Tanya Albert, "Will Massachusetts court allow expert to be sued?", American Medical News, Oct. 4).

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