Expert Witness Sued for Refusing to Testify

An expert witness has successfully defended himself for refusing to testify in a case he was retained for, although perhaps a dubious success, given the costs of defending himself in district court, and then on appeal.

In Swanson v. Larson (2021 ND 216), Leland Swanson claimed breach of contract and professional negligence against Mark Larson, CPA, a forensic accounting expert witness. Swanson and Larson had entered into an Engagement Agreement in which Larson was to provide forensic accounting services for litigation against Swanson's former business partner, and the agreement stipulated that Larson would provide expert witness testimony upon request. During discovery for that case, Larson was identified as an expert witness.

Some five months after discovery, Larson gave written notice to Swanson's attorney ending the engagement. Swanson then retained another expert to testify in the case, and filed his claim against Larson.

In North Dakota District Court, Larson moved for summary judgment, arguing the agreement did not require him to testify at trial, that it was terminable at will by either party, and that he did not breach the agreement by terminating his services. Swanson then requested more time for discovery, which was granted.

Nearly a year later, Swanson requested additional time for discovery, which the District Court denied, granting summary judgment to Larson, concluding that the Engagement Agreement only required Larson to provide consulting services for Swanson, that Larson did not breach the agreement by terminating his services because the agreement did not have a fixed term or expiration date, as would be required under North Dakota law to support Swanson's claim.

Swanson appealed. The North Dakota Supreme Court affirmed the judgement of the District Court.

Here the expert witness “won” his case for refusing to testify, but the cost of the trial, the appeal and to his reputation could not be insubstantial. A well written Engagement Agreement is good, but a high level of discretion in accepting agreements is even better.