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October 13, 2015 Practice Points

Preventing Friendly Fire

Is there any legal recourse if experts do not abide by the duty of care and are negligent in their services?

By Alex A. Koltsov

Expert witnesses are retained to assist the court by applying appropriate skill and care to the case evidence and make sense of it. Often, an expert's methodology and delivery are the key ingredients to a favorable outcome; however, lacking the proper level of care and attention could result in equally unfavorable outcomes. The question becomes, is there any legal recourse if an expert does not abide by the duty of care and is negligent in his or her services? The short answer (as expected) is, "It depends." To make an assessment, the court and the plaintiff (i.e., counsel and/or the client who hired the expert) must make separate, yet sequential, evaluations:

  1. The court must determine that the witness immunity doctrine does not apply.
  2. The plaintiff must prove that (a) the expert breached a duty owed, and (b) the breach of that duty was the proximate cause of some actual loss or damage.

The plaintiff's burden of proof will be unique to each case and is outside the scope of this analysis. However, identifying which courts have decided to forego witness immunity for friendly experts (as opposed to adverse experts) provides valuable insight. Seven of the eight states that have heard cases involving lawsuits against friendly expert witnesses have determined that friendly experts are not entitled to immunity. As such, the courts have determined that allowing friendly experts to be liable for negligence is in the best interest of the judicial system:

"Properly viewed, however, the roles of 'hired gun' and servant of the court are not necessarily incompatible. In reality, the expert retained for litigation is hired to present truthful and competent testimony that puts his client's position in the best possible light. The expert witness's oath, the heat of cross-examination, the threat of a perjury prosecution, and, not least, the expert's professional ethics code all serve to limit the feared excesses of an expert subject to malpractice liability. (Case No. 2001-CQ-1106, Supreme Court of Louisiana, 2002)

"…by definition, expert witnesses retained by a party are not objective witnesses. They have no personal knowledge of the facts of a case. They are retained by a party to assist that party in advocating its position. Moreover, the existence of liability will, in my view, encourage experts to be more careful and thorough resulting in more accurate, reliable testimony." (Case No. 99-1868F, Superior Court of Massachusetts, 2001)

At its core, there is a dual pressure on experts—they must clear Daubert motions from opposing counsel, while recognizing the distinct possibility that their own client could bring civil action against them for malpractice. This risk should serve as added motivation for experts to set expectations early with counsel, formulate an objective and thorough opinion, and follow through on those commitments.

Unfortunately, that is not always the case. Similar to cases in which an expert is the critical component to a favorable judgement, there are a number of situations in which the court's decision hinged on an unreliable and/or ineffective witness during deposition or trial testimony:

In a 2014 California Appellate decision, the Court refused to base its ruling on the Plaintiff's accounting expert, citing: "[d]uring the hearing the court was compelled to take two recesses so that [the accounting expert] could rework his accounting calculations, which had been based on incorrect information. At one point the court had to point out where he had erred in his calculations. The court finds [the] expert testimony not reliable…" (Case No. B253593, Court of Appeal of California, 2014)

In a 2010 United States Court of Appeals product liability case, the Court did not accept the methodology and basis of a qualified expert's opinion based, in large part, to the differing accounts offered by Counsel and his friendly expert: "[Counsel] lists seven additional articles and studies that he contends [the expert] relied upon in reaching his conclusion…a review of [the expert's] deposition testimony shows that he mentioned one article…" (Case No. 09-13813, United States Court of Appeals, 2010)

To mitigate these unexpected and unwanted outcomes, the underlying theory of doing the right thing for the client must be at the foundation for all representative parties. Attorneys should hire the right expert for the case, communicate expectations clearly, and properly prepare the expert for testimony. Similarly, experts should intimately understand the case in which they are testifying, anticipate objections from the other side, and effectively communicate the basis for their opinions. This recipe will provide your client an aligned legal team and should manage to keep your expert friendly and not on the other side of the aisle.

Alex A. Koltsov is with Grant Thornton, LLP, in Phoenix, Arizona.

Keywords: witness, expert witness, litigation, friendly expert, malpractice, witness immunity, duty of care, Daubert

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