Whose Expert Are You, Anyway? Suing an Expert for Changing His Mind

Robert Ambrogi, Editor of IMS ExpertServices' BullsEye Newsletter

This article was originally published in BullsEye, a newsletter distributed by IMS ExpertServices. IMS ExpertServices is the premier expert witness and litigation consultant search firm in the legal industry, focused exclusively on providing custom expert witness searches to attorneys. Please visit IMS ExpertServices at www.ims-expertservices.com or call us at 877-838-8464.

5 June 2008. Should an expert be sued simply for changing his mind? Or does an expert's obligation to the truth provide protection against such suits?

These are the troubling questions raised by a recent decision of the 10th U.S. Circuit Court of Appeals allowing a lawsuit to proceed against a doctor whose change of heart on the eve of trial contributed to dismissal of a medical malpractice claim.

The opinion never decides the question of expert immunity, instead remanding the case to the trial court to consider the issue. But a strong dissent says that sets a dangerous precedent.

"Allowing this claim to march along sends the message to would-be expert witnesses: Be wary - very wary - of changing your mind, even when doing so might be consistent with, or compelled by, the standards of your profession," writes Circuit Judge Neil Gorsuch in disagreeing with his colleagues on the three-judge panel.

Edward P. Richards, law professor at Louisiana State University's Law Center and director of its Program in Law, Science and Public Health, says he is troubled by the case for its suggestion that experts should be expected to deliver pre-packaged opinions.

"We have the fiction that the expert is there to give an opinion on the truth, but it is 'advocacy truth,'" Richards says. "If we allow lawsuits such as this against the experts, is the cause because the expert didn't testify to what you needed?"

If anyone should be sued under these circumstances, it is the attorney who hired and prepared the expert, Richards believes. "The lawyer should bear responsibility for the preparation of witnesses. If the witness fails, then we should be looking to the attorney, not the witness."

Change of Mind

This would not be the first case to allow a party to sue its own expert witness. Courts in at least seven states have allowed such actions. But while these other cases all alleged negligence by the expert in reaching an opinion, the 10th Circuit opinion involves an expert who changed his opinion after learning additional facts.

The plaintiffs, Thomas and Karol Pace, had retained Dr. Barry N. Swerdlow as an expert in their Utah state court case against the doctors who treated their daughter shortly before she died. After reviewing the medical records, Swerdlow filed an affidavit that the doctors had breached their duty of care by releasing the Paces' daughter rather than monitoring her overnight.

At Swerdlow's deposition in the med-mal case, he testified under intense questioning that he had not seen the defendant doctor's deposition or even known of it, describing himself as "a relative novice" in serving as an expert.

Afterwards, he obtained the transcript of the doctor's deposition as well as of the depositions of two nurses. When sent his own deposition to review, he drafted and attached a two-page "addendum" saying that, having reviewed the transcripts, he now believed the med-mal defendants had acted within their standard of care. He sent the addendum simultaneously to counsel for both sides.

With trial a week away and a summary judgment motion pending, plaintiffs' counsel sought to withdraw the expert and obtain a continuance. Instead, the trial court granted summary judgment for the defendants, noting that Swerdlow's testimony and addendum failed to provide grounds to support malpractice.

With their case dismissed, the Paces sued their former expert in Utah state court. He removed the case to federal court, where he asked to have it dismissed based on the principle of witness immunity and on other grounds. The federal court granted the motion to dismiss, not on the grounds of immunity, but because the expert's change of opinion was not the proximate cause of the earlier case's dismissal.

The 10th Circuit reversed, concluding that the plaintiffs had alleged sufficient facts to survive summary judgment. Because the district court never addressed the immunity issue, the Circuit Court said it would be free to do so on remand or to certify the question to the Utah Supreme Court.

A Troubling Message

In his dissent, Judge Gorsuch notes that witness immunity is an open question in Utah. But even if the state were to allow such a suit, he argues, it would have to allege some degree of malpractice – not "an innocent and professional reassessment of his expert opinion."

By allowing the case to go forward without proof of malpractice, the majority is sending a troubling message to experts that they had better not change their minds, Gorsuch contends.

"In our legal system, demanding that experts 'deliver' a specified opinion, as opposed to their honest judgment, is supposed to be ethically out-of-bounds – not the basis for a cause of action," he writes.

"The loser in all this is, of course, the truth-finding function and cause of justice our legal system is designed to serve."

Is Legislation Needed?

Ted Frank, director of the American Enterprise Institute Legal Center in Washington, D.C., and contributor to the popular legal blog Overlawyered.com, believes that Judge Gorsuch is correct in his analysis. "The incentives of expert witnesses to give independent truthful opinions are already distorted, and should not be distorted further."

Beyond that, the court appears not to have thought through the consequences of its decision, he says. "Every cross-examination of an expert at deposition should now include questions relating to the expert's fear of being sued."

But Peter J. Krumholz, a litigation partner with the Denver firm Hale-Friesen and contributor to the Rocky Mountain Appellate Blog, says he has no problem with the 10th Circuit's opinion from a policy perspective.

"Neither the majority, nor Judge Gorsuch in dissent, really discussed the applicability of the witness immunity doctrine – nor are they particularly well-suited to do so, since it's a state law issue."

While the district court may end up certifying the immunity question to the Utah Supreme Court, he adds, the issue of expert witness immunity may ultimately be one for state legislatures to decide.

Robert J. Ambrogi is a lawyer and media consultant in Rockport, Mass. He writes the blog LawSites, www.legaline.com/lawsites.html.