What happens when a hired gun misfires? You know better than anyone that expert witnesses can make your case. But what happens if they break it? Read Expert Witness Malpractice: Making the Case for—and Against—Civil Liability to find out what happens when experts do more harm than good—and whether or not they can be held accountable for misrepresenting themselves or performing negligently.

1. Expert Witness Malpractice: Making the Case for—and Against—Civil
Liability
Brought to you by the Real Law Editorial Team.
Captain Corcoran was never, never sick at sea. Well, hardly ever—as audiences familiar with
Gilbert and Sullivan’s beloved 1878 comic opera H.M.S. Pinafore know so well. Indeed, they
eagerly await the moment early in the opera when, challenged in song by his gallant crew, the
ship’s posturing commander confesses that he might occasionally succumb to seasickness, after
all.
Later in the same musical number, when Corcoran also claims to “never use a big, big D”—
swear, in other words—the chorus of sailors is again skeptical, prompting cross-examination
that elicits another admission of fallibility.
False or misleading testimony. Ruined credentials at a critical moment. (The captain is
eventually revealed to be a lowly able seaman who was accidentally switched at birth with
another character in the play.) For all the mirth and silliness of W.S. Gilbert’s plot (set to Arthur
Sullivan’s lively score), there’s something uncomfortably familiar in the tale for those in the
legal profession.
What happens, for example, when a friendly expert witness is negligent in performing or
misrepresents his or her qualifications so badly that the case is lost?
In such instances, the curtain can rise on an entirely different sort of spectacle—one with far
more drama than merriment.
Hired Guns Sometimes Misfire
Several recent cases call attention to how friendly expert testimony can prompt unintended
consequences.
In November 2013, a proposed investor class action against Deutsche Bank AG was tossed out
after the defense persuaded a federal judge in Manhattan that the evidence given by an expert
witness for the plaintiff was faulty and unreliable. “U.S. District Judge Katherine Forrest didn’t
just find flaws in the methodology employed by the expert,” it was reported. “She also took
issue with [the expert’s] credibility.”
Indeed, in her ruling Judge Forrest noted that the witness had once worked with an individual
whose career ended after pleading guilty and going to jail for submitting false declarations and
taking secret success payments in connection with various securities class action suits. Out of a
job, the witness had started his own firm and continued to provide sworn declarations for
clients.

2. At the evidentiary hearing, the court found expert witnesses for the defense to be consistent,
articulate, responsive and credible, in contrast to the expert for the plaintiff. In fact, Judge
Forrest went so far as to declare the latter “unqualified” to testify and, rather disparagingly,
simply “an expert in plaintiffs’ securities cases.”
When Experts Do More Harm Than Good
Interestingly, the decision favoring Deutsche Bank was not the first such ruling by Forrest. In
May 2013, she denied class certification in a lawsuit by shareholders against China Automotive
Systems, Inc. on similar grounds, citing flawed analysis underlying testimony by an expert
witness for the plaintiffs.
In another case from 2013, a Philadelphia judge granted a new trial in a medical malpractice
case concerning an alleged delay in diagnosing lung cancer after an expert witness for the
defense testified (contrary to the court’s pretrial order) that the plaintiff was a smoker. The
expert’s testimony also resulted in a motion for sanctions, leaving open whether defense
counsel, her client and the expert should pay more than $800,000 in attorney fees, costs and
expenses incurred in the initial trial.
Such cases illustrate not only the perils of relying on expert witnesses, but also the potential
risks when attorneys rely on individuals who have not been thoroughly vetted.
What attorneys and their clients are often left to ponder is whether they can sue their friendly
experts for breach of contract or professional malpractice when the experts or their sworn
statements are discredited.
A Shifting Landscape for Legal Accountability
For many years, the answer to the question concerning expert liability stemming from judicial
proceedings was a firm “No,” given that states followed the common law doctrine that
provided absolute immunity in witness testimony.
The U.S. Supreme Court had weighed into the matter in Briscoe v. Lahue, 460 U.S. 325 (1983),
declaring that fact witnesses in criminal proceedings also have immunity. The principle was
expanded over time to cover expert witness testimony as well.
However, that protection has slowly eroded, and now a handful of states—including California,
Connecticut, Louisiana, Massachusetts, Missouri and Pennsylvania—allow malpractice claims
against friendly expert witnesses. In addition, other states (New Jersey and Vermont) have held
that court-appointed expert witnesses may face liability for negligent performance of their
professional duties.
States have also dealt with the issue of suing an adverse expert witness (New Jersey and West
Virginia), while others have addressed attorney liability stemming from expert witness
negligence (California and New York).

3. On the other hand, as recently as 2011, states such as Michigan and Tennessee have ruled in
favor of preserving expert witness immunity (although that protection in Michigan relates to
testimony in judicial proceedings but not underlying opinion).
The Added Scrutiny of Professional Oversight
The current split in jurisdictions doesn’t alter an important fact for many expert witnesses. Even
where traditional expert witness immunity is preserved, they are not completely removed from
consequences. As the witness consulting services industry has developed and matured over the
past few decades, the role of professional associations and others exercising oversight and
scrutiny of their members has also expanded.
In 1983, for example, the American Association of Neurological Surgeons (AANS) began
monitoring participation in judicial proceedings by its members, and established standards of
conduct as well as sanctions for improper expert testimony. Other medical societies followed
the association’s example. So, too, did professional organizations from other disciplines.
The legality of such professional oversight has been challenged—and, so far, affirmed. In fact,
the first test involved a surgeon who was suspended by the AANS as a result of his testimony in
a medical malpractice suit. In June 2001, the Seventh U.S. Circuit Court of Appeals ruled in favor
of the AANS and held that a professional society could discipline a member for improper
testimony.
A Duty of Care—But at What Price?
Regardless of whether an expert is exposed to the possibility of sanctions handed down by a
professional body, most attorneys would agree that those who take on the role of expert
witnesses owe a duty of care to their clients, as well as an overriding duty to the courts.
But whether that duty should also include a civil liability for incompetence or other
unprofessional conduct is largely still open to debate.
Some in the legal profession might like to see a further erosion of expert witness immunity. A
few might even advocate following the lead of the United Kingdom, for example, where the
Supreme Court there in 2011 abolished a 400-year-old rule giving experts complete immunity
from claims.
Yet an unsettling implication of expanding civil liability for expert witnesses is that attorneys
may be increasingly exposed to accusations of legal malpractice as a result. If the expert was
negligent, it could be argued that so, too, was the law firm that hired him or her.
Indeed, for those who would oppose expanding civil liability for expert witnesses, the status
quo reflects enough of a shift in the legal landscape. In the United States today, an expert
witness has complete immunity and is never—never—held liable for negligence or professional
malpractice.

4. Well, hardly ever.
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