Judicial Notebook

May litigants sue their own expert witnesses for malpractice in trial preparation or testimony? This question was answered differently last year by two trial courts, one in Connecticut, the other in Louisiana. Earlier appellate decisions in other states offer conflicting guidance.

In a May decision in Pollock v. Panjabi, New Haven, Conn., Superior Court Judge Bruce L. Levin denied a motion to dismiss a lawsuit against world-renowned Yale University biomechanics expert Manohar Panjabi, who had been retained by a quadriplegic plaintiff in a Canadian police brutality suit to help determine the cause of the plaintiff's paralysis. Panjabi concluded that an officer's hold on the plaintiff caused the injury. Three times, however, a Canadian trial court barred Panjabi from testifying, finding that the expert had based his conclusion in part on improperly conducted analyses. The plaintiff, who nevertheless won a $783,000 judgment against the police, subsequently filed a breach-of-contract lawsuit, alleging Panjabi improperly conducted the tests he had been hired to perform. In allowing the lawsuit to go forward, Judge Levin ruled that the point of contention was not Panjabi's testimony but his alleged failure to meet his obligation to provide scientifically supportable conclusions.

In another case, Marrogi v. Howard, the defendants, experts in medical billing, had been retained by a physician to assist in his lawsuit against a former employer. The physician, who claimed he had been underpaid by the employer, retained the defendants to analyze one year's billing records and testify on his behalf. When the physician's lawsuit against the employer was dismissed, he blamed the experts, alleging that the dismissal was caused by their "substandard expert performance." In dismissing the physician's lawsuit against the experts, U.S. District Judge Helen G. Berrigan in New Orleans cited "a line of Louisiana cases that uniformly recognize absolute immunity to witnesses in judicial or quasi-judicial proceedings."

The doctrine to which Judge Berrigan referred is the general rule in most jurisdictions, designed to encourage witnesses to testify freely and honestly without fear of lawsuits arising from their testimony. The doctrine appears to have universally protected expert witnesses from lawsuits brought by adverse parties. However, a small number of courts have permitted, as the court did in Pollock v. Panjabi, lawsuits to be brought against expert witnesses by the litigants who hired them. In Murphy v. A.A. Mathews (1992), the plaintiff had hired the defendant engineering firm to investigate and provide testimony about the plaintiff's claims for additional compensation in an arbitration proceeding. After the testimony, Murphy sued, alleging that Mathews was negligent in its performance of professional services. The Missouri Supreme Court ultimately sided with the plaintiff, holding that "witness immunity does not bar suit if the professional is negligent in providing the agreed services."

In a similar lawsuit, however, the Supreme Court of the state of Washington reached the opposite conclusion. In Bruce v. Byrne-Stevens & Associates, the court held that witness immunity applied not only to an expert's testimony, but also to actions taken by the expert in preparation for that testimony. Acknowledging some merit to the plaintiff's claim that "the threat of liability would encourage experts to be more careful, resulting in more accurate, reliable testimony," the Washington court offered two justifications for refusing to exempt experts from the traditional witness immunity rule: "First, unless expert witnesses are entitled to immunity, there will be a loss of objectivity in expert testimony generally. The threat of civil liability based on an inadequate final result in litigation would encourage experts to assert the most extreme position favorable to the party for whom they testify....Second, imposing civil liability on expert witnesses would discourage anyone who is not a full-time professional expert witness from testifying. Only professional witnesses will be in a position to carry insurance to guard against such liability. The threat of liability would discourage the one-time expert--the university professor, for example--from testifying. Such...experts, however, can ordinarily be expected to approach their duty to the court with great objectivity and professionalism."

Implications for psychologists

These cases and a few others warrant the careful attention of psychological experts, ranging from forensic practitioners who testify regularly to academics who occasionally appear in court or may do so only once in their careers. Those who testify will most certainly want to be aware of their potential liability, which may vary from state to state. Moreover, if these kinds of lawsuits are allowed to proceed, psychologists will want to have major input when it comes to the standards of care courts adopt for judging malpractice claims against psychological experts.

"Judicial notebook" is an effort by the Courtwatch Committee of APA's Div. 9, the Society for the Psychological Study of Social Issues, to encourage involvement by psychologists in judicial decision-making.