By Michael Hoenig - New York Law
Journal - November 14, 2016
On Oct. 19, in Fore
v. State,1 a
Florida appellate court tossed out a civil contempt fine of
$6,670 imposed upon an expert after a defendant's criminal trial
for drunk-driving manslaughter. It seems that the accident
reconstruction expert completed an affidavit in support of
defendant's application for post-conviction relief that
contained incorrect information based on the expert's
misinterpretation of a report from Toyota regarding data from
the victim's vehicle. During the expert's preparation for the
post-conviction evidentiary hearing, he realized that certain
opinions in his affidavit were wrong. He notified defense
counsel but took no action to change his affidavit or otherwise
inform the court of his changed opinions.
The state successfully moved for sanctions. The appellate court
reversed, however, because the expert did not intentionally
violate a court order. What caught this writer's eye and
stimulated this column is the following policy statement by the
court: "[A]ggressive application of the inherent authority…to
sanction a non-party expert witness in a criminal case would
'create a chilling effect on a party's exercise of [the]
constitutional right to freedom of speech, access to the courts,
and due process.'"2
In civil litigation, when retained or testifying experts err
materially, causing a case or settlement loss, do they get some
kind of immunity so that access to experts is not "chilled" by
allowing experts to be sued frequently? The answer to this
question is not so easy. It seems there are competing policy
tensions and, depending on the applicable legal precedents, suit
might be permitted or foreclosed. A bright-line rule is elusive
so affected parties and counsel have to slog through the legal
swamp, so to speak. Fortunately, there is some helpful
commentary cited in the endnote.3 Additionally,
case law seems to be trending toward permitting some lawsuits.4 Counsel's
awareness of the potential for exposure is recommended.
Some pivotal, practical questions, are: If a claim has been
thrown out because an expert botched his assignment or because
the expert was found unreliable in key areas, does that open the
expert to being sued for professional malpractice, negligence or
breach of contract? In turn, could permitting such a claim
expose the lawyers who retained that expert to direct suit by
frustrated clients or to third-party claims by experts who are
sued by losing litigants? Variations on these thematic questions
What if a plaintiff were forced to settle a sizeable claim for a
fraction of what it was worth? Could the expert who materially
flunked on the witness stand be sued for the difference between
the pittance paid in settlement and the more generous one which
may have been obtained had the expert not failed? And, if so,
could the lawyer who hired, prepared and presented the expert be
implicated in claims based on that expert's failure to pass
Do experts who hold themselves out as professionally gifted or
capable of giving opinions in complex litigation vouch for their
own reliability? Is there something akin to an expert's implied
warranty of reliability? Is that an assumption lawyers who
retain experts should reasonably make? Or must lawyers be more
suspicious, more proactive and critical in ferreting out
below-par expertise? If so, how can that duty practicably be
discharged when lawyers are not versed in the scientific or
technical discipline of the expert? Will lawyers get sucked into
litigation regardless? So many lawyers retain experts on scant
referrals or via referral services or agencies—a litigation
sub-industry in itself. Are such referral agencies themselves
potential targets of suit when an expert egregiously falls below
In a Pennsylvania Supreme Court decision called
of Michigan, Inc. v. Jackson-Cross,5 a
commercial litigation, an attorney retained the chairman of a
consulting company as an expert on the issue of the plaintiff's
lost profits. The expert provided a calculation for trial
estimating lost profits to be $6 million. The calculation was
prepared by one of the expert's employees using a computerized
accounting spreadsheet program.
The expert offered his opinion at trial but the situation
unraveled during cross-examination. Defense counsel established
that the calculation contained a mathematical error that
completely undermined the basis for the opinion on damages. The
expert conceded the error. Worse, because he had not performed
the calculations himself, he was unable to explain the
mathematical error or to recalculate the lost profits by
correcting the error while on the stand. Defense counsel moved
to strike the testimony and the trial judge did so, instructing
the jury to completely disregard the expert's testimony. The
next day, critically hamstrung, the plaintiff settled for a
fraction of even the corrected, lower computation of lost
profits. A lawsuit against the expert and his consulting firm
The key question bothering the Pennsylvania courts was whether
the "witness immunity" doctrine, immunizing parties and
witnesses from subsequent damages liability for their testimony
in judicial proceedings, protected the expert from suit.
Although the "witness immunity" rule often has been raised in
subsequent defamation suits, the doctrine is not limited to
defamation actions. Immunity has been justified by courts to
avoid litigants and witnesses from imposing two forms of
self-censorship: (1) the witness might be reluctant to come
forward and testify; and (2) once on the stand, the testimony
might be distorted by fear of subsequent liability, resulting in
the shading of testimony to favor a party or to magnify
uncertainties thereby distorting candid, objective evidence.
The Pennsylvania Supreme Court, however, allowed the lawsuit
against the expert for professional negligence in forming the
opinion, saying that the judicial process "will be enhanced only
by requiring that an expert witness render services to the
degree of care, skill and proficiency commonly exercised by the
ordinarily skillful, careful and prudent members of their
profession." 6 The
Pennsylvania court cautioned that mere challenge of the expert
by another expert's competing opinion that prevails is not
grounds for liability.
In a California appellate court decision,
Group, Inc. v. Frantz, Townsend & Foldenauer,7the
underlying case involved a product liability setting. In a
nutshell, Mr. Hernandez was killed when struck by a forklift in
a workplace. The family retained the law firm to pursue a
products liability claim against the manufacturer. The suit
alleged defects in the backup alarm and side mirrors of the
forklift. The family's law firm consulted Forensis, an expert
clearinghouse, which referred a mechanical engineer named
Malcolm Robbins to be the expert.
Robbins inspected the vehicle, reviewed documents provided to
him by the law firm, including publications of the Society of
Automotive Engineers (SAE) regarding safety alarms on such
vehicles. At his deposition, however, he did not identify any
applicable safety standards with respect to the manufacturer's
installation of a backup alarm. The manufacturer successfully
moved for summary judgment contending the forklift was not
defective and met all applicable safety standards.
The expert had prepared a declaration in opposition to the
motion stating that the vehicle failed the criteria of a
particular SAE industry standard. However, the expert was now
contradicting his earlier deposition testimony. He also failed
to adequately explain why he now was claiming a violation of an
SAE standard when he did not use that standard in performing his
tests on the vehicle and when giving deposition testimony.
The Hernandez family settled their remaining claim against the
rental company. They did not appeal the summary judgment ruling.
The original law firm then referred the family to a lawyer who
was known to the firm from prior dealings. The new lawyer sued
Forensis, the expert referral firm, and the expert on many
professional negligence theories, alleging that Robbins failed
to exercise the care and skill that a member of the forensic
engineering profession should have. This negligence allegedly
caused the Hernandez family to forfeit its $1.5 million claim.
They also alleged that Robbins' expertise had been
The sued experts, in turn, filed separate cross-complaints
against the Hernandez family's original lawyers, claiming that
the law firm's professional activities should subject the firm
to a share of the loss attributable to unsuccessful opposition
to the summary judgment motion in the original action. They
argued the law firm waited too late to consult Forensis to
obtain a suitable expert and/or had failed to provide Robbins
with sufficient information to allow him to provide adequate
services. The law firm allegedly failed to provide the experts
with relevant information before and after the hiring; failed to
rehabilitate Robbins at his deposition regarding use of the SAE
industry standards; and failed to provide the trial court with
accurate products liability law about admissibility of industry
The sued experts retained a legal expert who opined that the law
firm may have breached its duty of care to its client and was
therefore responsible for losing the summary judgment motion.
The law firm, in turn, retained legal and engineering experts.
Robbins and Forensis settled with the Hernandez plaintiffs.
The California Court of Appeals, following an elaborate
consideration of the public policy issues and analogous
malpractice scenarios, examined the nature of the relationship
between the experts and the law firm. Quoting from a prior case,
the court observed that, "In today's technologically driven
litigation [many kinds of experts] frequently are hired to
assist a party in preparing and presenting a legal case. Often
they play as great a role in the organization and shaping and
evaluation of their client's case, as do the lawyers. Those who
provide these services are selected for their skill and ability
and are compensated accordingly just as any other professional.
As experts they are subject to liability if they perform
services negligently… Like other defendants in negligence
lawsuits, litigation support professionals are only responsible
for the losses they cause."8
By seeking equitable indemnity against the law firm, the sued
experts were contending that law firm personnel were joint
tortfeasors with them in representing the Hernandez plaintiffs.
What is the true relationship of a law firm and retained
experts? The court stated [citing a treatise] that the duty of
an attorney who hires an expert witness is to "make sure that
the expert, particularly the inexperienced expert, understands
the governing legal principles and elements that each party to
the litigation must prove in order to prevail." Further, an
expert "is not a mechanical toy that can simply be wound up and
turned loose. Regardless of the expert's skill, it is the
lawyer's responsibility to make sure that his or her expertise
is presented to the trier of fact in an admissible and
persuasive way. To accomplish this task, the lawyer needs to
understand the substantive details of the expert's testimony and
field of expertise."9
The appellate court concluded that experts ordinarily should be
permitted to sue the law firm for equitable indemnification of
professional malpractice damages for which they have become
liable. Policy issues to the contrary were not insurmountable
and did not outweigh yet another public policy: "that of
protecting the professional interests of all expert witnesses
generally to participate in litigation, and the interests of the
judicial system in obtaining the assistance of such expertise.
These interests are significant enough to warrant an expert's
being accorded a right to recourse against those responsible, if
any professional negligence should occur on the part of counsel
who retained those expert witnesses, with respect to presenting
their evidence and defining the proper scope of the experts'
duties and obligations within the litigation setting, if any
harm to the client should occur. Such a right to recourse for
expert witnesses could include equitable indemnity claims."10
The California and Pennsylvania decisions expose a bitter
reality. Sometimes, professional services attending litigation
fall below the mark. That causes some lawsuits to be filed.
Legal malpractice is, in a sense, a sleeping tiger capable of
being aroused, and of pouncing and biting hard. Experts and
other litigation support professionals are likewise potential
targets for suit when they are negligent and cause loss. What
perhaps is not fully appreciated is that an expert's flub may
implicate the lawyer's own exposure. Given the purported
"duties" a lawyer may have regarding the retention, preparation
and presentation of experts, as the California decision posits,
lawyers may even become the choice "deep pocket" targets when
experts who botch their assignments have limited resources.
1. 2016 Fla. App. LEXIS 15585 (Ct. App. Oct. 19, 2016).
2. Id., LEXIS at *5.
3. E.g., M.T. Nelson, "Survey: "Pace v. Swerdlow": Can Expert
Witnesses Face Liability for Changing Their Minds? The Tenth
Circuit Weighs in on the Element of Proximate Cause in a Claim
of Expert Negligence," 86 Denver U.L. Rev. 1199 (2009); L.S.
Weiss, "Expert Witness Malpractice Actions: Emerging Trend or
Aberration?" ALI-ABA Course of Study Materials (Course Number
SN058, Feb. 2008); A. Jurs, "The Rationale for Expert Immunity
or Liability Exposure and Case Law Since Briscoe: Reasserting
Immunity Protection for Friendly Expert Witnesses," 38 U. Mem.
L. Rev. 49 (Fall 2007); J.P. McCahey, "Should Experts Receive
Witness Immunity?" ABA Section of Litigation, Commercial and
Business Litigation, pp. 10-12 (Fall 2006).
4. See e.g., Pollina
v. Dishong, 2014 Pa. Super. LEXIS 2306 (Pa. Super.
Ct. July 22, 2014); Hoskins
v. Metzger, 2012 Fla. App. LEXIS 21757 (Fla. Ct.
App. Dec. 19, 2012); Marrogi
v. Howard, 2002 La. LEXIS 19 (La. Sup. Ct. Jan. 15,
v. Connelly, 2000 Pa. Dist. & Cnty. Dec. LEXIS 237
(Pa. Common Pleas, July 21, 2000). See also, Pace v. Swerdlow, 2008
U.S. App. LEXIS 4631 (10th Cir. March 4, 2008) (the case
discussed in the Denver U.L. Rev article cited in the previous
5. 740 A.2d 186 (Pa. Sup. Ct. 1999).
6. Id., at 191.
7. 2005 Cal. App. LEXIS 929 (Cal. App. 4th Dist., June 9, 2005).
Group, 2005 Cal. App. LEXIS 929, at *34 (quoting
Forge, Inc. v. Arthur Young & Co., 52 Cal. App. 4th
820, 60 Cal. Rptr. 2d 780 (Cal. App. 1997)).
Group, 2005 Cal. App. LEXIS 929, at *35-*36.
10. Id., LEXIS at *40.
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