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Hot Seat Gets Hotter for Expert Witnesses
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Reprints & Permissions It's a tough time to be an expert witness. Courts are increasingly ordering such witnesses to disclose financial information or risk having their testimony struck from a case.
Also, in recent years, a growing number of courts have permitted parties to sue their own experts for negligent testimony, holding that expert witnesses should not be immune from liability from their own clients.
In California, a couple is suing a property-appraisal expert they hired for allegedly failing to adequately estimate the costs to rebuild their home, which was destroyed in a fire. The couple claimed the expert's estimate was $1.8 million off. The California Supreme Court in April refused to hear an appeal from the expert, who claimed immunity. Lambert v. Carneghi, No. 439931 (San Francisco Co., Calif., Super. Ct.).
In Utah, a couple is suing a medical expert they hired in a wrongful death suit for changing his testimony on the eve of trial, which led to the dismissal of the case. In March, the 10th U.S. Circuit Court of Appeals ruled that the lower court erred in dismissing the couple's suit against the expert. The case has been remanded. Pace v. Swerdlow, 519 F.3d 1067 (10th Cir. March 4, 2008).
"The trend in the country is to allow this sort of thing — and people are starting to do it," said Craig Moody, a San Francisco solo practitioner who represents the plaintiffs in the California fire case.
"You shouldn't be able to sue an expert just because you don't like his result . . . but you should be able to sue if he's negligent," he said.
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