Blanket Immunity Sliding Away from Expert Witnesses

Expert witness immunity is not absolute and is becoming less so under recent U.S. federal and state court rulings. While the fundamental principle of  the witness immunity doctrine still stands strong, claims against expert witnesses have grown, and with the lack of authority in the area, experts are becoming more vulnerable to claims in an increasing number of states.

In civil cases, loss of immunity by an expert witness has been limited in recent years to matters of professional malpractice and negligence, based on cases reviewed for this article.  In criminal matters, immunity has not been granted for matters involving pre-trial and non-testimonial acts, most often in civil rights cases.

Some states now clearly allow malpractice claims against friendly expert witnesses in civil matters, including: California, Connecticut,¹  Louisiana,² Massachusetts, Missouri, Oklahoma, Pennsylvania, Texas and Wyoming. Other states, such as New Jersey and Vermont, are allowing claims of negligent performance against court-appointed experts and still others, including New Jersey and West Virginia, now allow claims against adverse expert witnesses. Limiting the immunity of expert witnesses has led to claims of negligence by the attorneys who employ them,  and those claims have been allowed in at least California, New York and Wyoming.

Traditionally, expert witnesses could not be sued for malpractice, although they could be prosecuted for perjury.³ This witness immunity doctrine, protecting experts from liability and damages for their testimony in judicial proceedings, is drawn from a long history in common law, and articulated by the United States Supreme Court decision Briscoe v. LaHue,⁴ which declared that fact witnesses in criminal proceedings have immunity, primarily because “testimony might be distorted by the fear of subsequent liability.” Bruce has expanded over time to include expert witness testimony.

Since Bruce, however, a number of opinions have ruled against applying the immunity doctrine in instances of professional negligence, primarily in matters involving friendly witnesses.

Some have traced this decrease in immunity to the increasingly higher standards being set for expert witnesses. Ten years after Bruce, Daubert v. Merrell Dow Pharmaceuticals, Inc.⁵ began replacing the near hundred year old Fry standard of “generally accepted” evidence with the higher standard of “reliable and scientifically valid” evidence. To date, 32 states have adopted the stricter Daubert standard, and several other states are reviewing their standards (most notably, New Jersey and Missouri). ⁶ 

As Kumho Tire v. Carmichael ⁷ expanded the Daubert standard to include expert testimony from non-scientists, as subsequent cases have come to emphasize the dangers of unscientific expert testimony, and as forensic science has exploded into pop culture, the expectations of what experts can and should do, have increased.

In Murphy v. A. A. Mathews,⁸ the Missouri Supreme Court found that no expert witness immunity exists for negligence by a professional providing an agreed service. The appellant had retained Mathews to prepare claims for compensation from a subcontractor in an arbitration proceeding. Matthews testified for the appellant at the arbitration for an award of an additional compensation of almost $5 million. The arbitrators awarded slightly more than $1 million, and the appellant sued Matthews for negligence, but the claim was dismissed based on witness immunity.  The appeals court reversed that judgement, noting:

“Often they [the expert witnesses] play as great a role in the organization and shaping and evaluation of their client's case as do the lawyers. Those who provide these services are selected for their skill and ability and are compensated accordingly just as any other professional. More often than not, their role is as an advisor and advocate as opposed to an objective and independent witness. We find no reason or principle of public policy justifying the extension of witness immunity to professionals retained for litigation support services.”⁹ 

In the Pennsylvania case of LLMD of Michigan, Inc. v. Jackson-Cross Company,¹⁰  the plaintiff hired an expert witness to determine the damages caused by the lenders' failure to close under the mortgage commitments it had made. The expert witness, Charles Seymour, chairman of Jackson-Cross, had an employee of his firm do the calculations.  During cross-examination, the defense found an error in the lost profit calculations which Seymour could not correct on the witness stand. The expert's testimony was stricken from the record, and the case then settled for approximately $750,000. Jackson-Cross later provided an estimate of $2.7 million in lost profits.

LLMD sued Jackson-Cross for professional malpractice. The trial court granted summary judgment in favor of Jackson-Cross, on a variety of grounds. The Pennsylvania Supreme Court reversed the trial court, finding specifically that the witness immunity doctrine did not bar a professional malpractice action, although it noted the decision had limited application. ¹¹

In California, in the case of Mattco Forge v. Arthur Young,¹² Mattco sued Arthur Young for, among other things: professional negligence, fraudulent misrepresentation and fraudulent concealment. Having lost at trial, Arthur Young appealed, but the appellate court found that the California Civil Code did not protect a negligent expert witness from liability of the party who hired the witness. Protecting the negligent expert, the court found,  "…does not encourage witnesses to testify truthfully; indeed by shielding a negligent expert witness from liability, it has the opposite effect." ¹³ The court clarified that this loss of immunity only applied to friendly experts, not those appointed by the court or adverse experts.¹⁴

In the Massachusetts case of Boyes-Bogie v. Horvitz,¹⁵ Karen Boyes-Bogie's attorney retained a business valuations expert, Joel Horvitz, in a divorce action against her husband, retaining Horvitz to provide a valuation of a business 100% owned by Boyes-Bogie's husband.  Horvitz valued the firm at less than $3 million, a value upon which Boyse-Brice based her agreement to settle.The accountants for Boyes-Bogie's husband subsequently valued the firm at $8.5 million. Horvitz was paid $7,500 for his services.

The Massachusetts Superior Court found that Horvitz did not comply with the applicable professional standards in valuing the firm, and that the doctrine of witness immunity did not bar a claim.

As these court decisions have gradually picked away at expert witness immunity, the decisions of professional associations and boards have taken their own toll. These professional groups now often monitor the expert witness activity of their members and discipline them for what they see as professional misconduct. For example, quasi-judicial medical association disciplinary boards have both suspended and revoked members for their expert witness work.

In Donald C., Austin v. American Association of Neurological Surgeons, ¹⁶ the right of such boards to discipline their members was upheld by the the Seventh U.S. Circuit Court of Appeals. The Appellate court found that expert witnesses do not have blanket immunity from the professional associations they belong to. In the case, a surgeon appealed his six-month suspension by the AANS for what it found to have been improper testimony in a malpractice case. The surgeon argued that “…the threat of such sanctions is a deterrent to the giving of expert evidence.”  The appellate court disagreed, finding that such sanctions of an expert “…rather furthers than impedes the cause of justice.”

Many attorneys have objected to any loss of immunity by expert witnesses, significantly because, if an expert witness is found negligent, the attorney who hired the negligent expert might be liable. Indeed, in Forensis Group, Inc. v. Frantz Townsend & Foldenauer,¹⁷ California's Fourth District Court of Appeal found that attorneys could be held liable.

The law firm of Frantz Townsend & Foldenauer retained a professional engineer through an “expert witness clearing house”, Forensis Group, Inc., for the plaintiffs in a wrongful death action. The plaintiffs' husband and father died in a workplace accident when a forklift struck the decedent. The expert engineer inspected the forklift involved in the death and reviewed documents provided by the law firm, including those published by the Society of Automotive Engineering (SAE) regarding the placement of safety alarms on forklifts.

When the engineer was deposed, he failed to identify applicable safety standards that required the installation of a back-up alarm. The forklift's manufacturer then moved for summary judgment, contending that the lack of a back-up alarm was not a defect and that the forklift met all applicable safety standards. In opposition to the summary judgment motion, the engineer submitted a declaration stating that the forklift “failed the criteria of a particular SAE safety standard.” However, the trial court found that this declaration contradicted the expert's earlier testimony, in which he did not identify any such safety standards.

The plaintiffs lost the summary judgment motion, hired new counsel, and sued the engineer and the expert witness clearing house, Forensis Group Inc., alleging professional negligence, misrepresentation and breach of fiduciary duty, in particular misrepresenting the expertise of the engineer, thus causing the forfeit of their $1.5 million claim.

Forensis and the engineer then filed cross-complaints against the law firm. The trial court dismissed the cross-complaints based on the potential conflicts of interest between the law firm and its former clients, impinging on attorney-client communications.

Forensis and the engineer then settled with the former clients, solving the conflict of interest dilemma. On appeal, the cross-complaints were allowed.

More recently, in the March 2014 Oklahoma case of Ellison v. Campbell, ¹⁸ the Oklahoma Supreme Court upheld a $408,000 verdict for breach of contract against Michael D. Campbell, an expert hydrogeologist,who was hired by Gene and Marcia Ellison to conduct tests and to drill monitoring wells on their property to establish empirical data confirming their suspicions that an oilfield waste disposal facility was responsible for polluting their ground water and the death of cattle grazing on their property who drank from the property's streams.

In December 2006, Campbell was deposed. He testified that he did not know whether certain protocols were followed in sample testing, pointed out significant errors in the report he submitted,  said he “was too tired” to go over his report, admitted that the charts in his materials could be riddled with errors, admitted that he did not know if the monitoring wells complied with Oklahoma Water Resources Board standards, and admitted that the U.S. Environmental Protection Agency would not accept his data as reliable. He testified he was “a busy person”. 

Campbell argued at trial that the Ellison's were required to present an expert witness to refute his testimony and to establish that he breached the terms of his contract. The appellate court found no such need. Campbell's admissions of substandard performance in preparing expert materials and his contradictory statements were sufficient to cause a reasonable juror to question his veracity.

Expert Witness Immunity in Criminal Cases

The majority of expert witness immunity issues reviewed have revolved around professionals engaged in civil matters, but the immunity of witnesses in criminal matters has not gone unchallenged. In March 2015, the U.S. Ninth Circuit Court of Appeals affirmed the district court's denial of summary judgment in the case of Lisker v. City of Los Angeles ¹⁹ regarding witness immunity shielding police officers' pre-trial activities.

Lisker was convicted of murdering his mother and subsequently filed a federal habeas corpus petition. The district court found Lisker's due process rights had been violated because falsified evidence had been admitted at trial. Lisker was released after spending twenty-six years in prison.

Lisker then filed a §1983 action seeking monetary damages from the City of Los Angeles and the two Los Angeles Police Department detectives for fabricating reports, investigative notes, and photographs of the crime scene during the homicide investigation. The two poice defendants filed a timely Notice of Interlocutory Appeal from the denial of absolute immunity.

In affirming the district court's denial of summary judgment, the U.S. Ninth Circuit Court of Appeals note that while the detectives were shielded from suit for their testimony, even to preparatory activities “inextricably tied” to testimony, such as conspiracies to testify falsely,  the immunity for pre-testimony conduct “is not limitless”, with the court referencing Paine v. City of Lompoc.²⁰ The appellate court found that the documentary and physical evidence, such as falsified videotaped interviews and forensic reports, fall outside the protection of absolute immunity.

Future

Whether in civil or criminal matters, expert witnesses should not assume complete immunity. The trend going forward appears to be towards less immunity, not more, and until there is greater authority in the area,  the range of potential liabilities will remain uncertain.