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N.J. bans "retaliating" against expert witnesses

Last year, in a little-noted and last-minute amendment to medical malpractice legislation, the New Jersey legislature enacted a measure banning "retaliatory action" relating to the employment or credentialing of persons because of their delivery of expert testimony in legal proceedings. Specifically, the bill provides as follows:

An individual or entity who threatens to take or takes adverse action against a person in retaliation for that person providing or agreeing to provide expert testimony, or for that person executing an affidavit pursuant to the provisions of P.L.1995, c.139 (C.2A:53A-26 et seq.), which adverse action relates to that person's employment, accreditation, certification, credentialing, or licensure, shall be liable to a civil penalty not to exceed $10,000 and other damages incurred by the person and the party for whom the person was testifying as an expert.

The bill has been noted with alarm by Louise Andrew at the Coalition and Center for Ethical Medical Testimony, but seems to have stirred little attention otherwise.

The bill is vague in many respects, but a few observations can be made about it:

* On its face, it appears intended to torpedo within the bounds of New Jersey any nascent trend toward peer review or self-regulation by which the medical profession might collectively police untruthful or unethical expert testimony. If that interpretation is correct, the amendment likely was meant as a favor to certain sectors of the plaintiff's bar which have crusaded against peer review/disciplinary review of experts' conduct.

* It is potentially broader than that, however. To begin with, although embedded in a medical malpractice reform bill, by its terms it might seem to apply not just to medical experts but to persons who give testimony in any field: falsehood-spinning engineers, truth-shading accountants, deluded economists, conveniently forgetful police-lab forensicists, and errant translators (as well as providers of good testimony in all those fields) might claim benefit from its provisions too (unless a court rules, e.g., that the legislature must have intended but forgotten to include a provision restricting the application to medical experts).

* Nor does it apply only to professional societies. Indeed, it menaces with liability any "individual or entity" who takes "adverse action" relating to an expert's "employment, accreditation, certification, credentialing, or licensure". If an expert makes headlines by testifying on behalf of the fabled "Twinkie Defense", O.J. Simpson's favored DNA theories, or creationist accounts of the origin of the earth, would it be illegal for a future employer to consider that conduct in withholding a job offer? Quite possibly it would.

* "Retaliation" and "adverse action", as employment lawyers know, can be broad concepts. They can include not being offered promotions or perks, being "shunned" by colleagues, being the subject of whispering campaigns, etc. The adverse action need only "relate to" employment or credentialing, raising the possibility that, say, negative job references or letters to credentialing agencies might count as adverse action.

* The potential exposure could in some cases be quite scarifying because of the way the law creates a right to damages on the part of the litigant whose lawyer hired a given expert. If an expert withdraws from a pending case, claiming a threat of retaliation by an employer, and the case is then lost or settled on unfavorable terms, might the litigant have a right to sue the employer for the lost value of the case? Quite possibly.

"This kind of professional self-regulation furthers rather than impedes the cause of justice," wrote Judge Posner in the 1997 Austin case. "More policing of expert testimony is required, not less." In New Jersey, however, it appears the force of the state is going to be brought to bear against those who attempt to resist the advance of unethical expert testimony.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.