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Expert Witness Liability

September 26, 2011

Expert witnesses may be sued for professional malpractice and negligence, and the testimonial privilege defense may not always be successful. Expert witness liability can extend either to pretrial preparation work or to courtroom testimony.  “Sue Your Expert—Liability of Expert Witnesses for Damages” is the lead article in the Fall 2011 issue of Dunn on Damages—The Economic Damages Report for Litigators and Experts.  The article was written by Robert L. Dunn, Editor in Chief of the Dunn on Damages journal and nationally known author of Recovery of Damages for Lost Profits (now in its sixth edition), Recovery of Damages for Fraud (now in its third edition) and Winning with Expert Witnesses in Commercial Litigation.  Reflecting the volume of important legal decisions about the topic, the recently published article is the first installment of a two-part series.


Mr. Dunn thoroughly analyzes the relevant case law related to expert witness liability.  The legal topic is complex.  As such, the reader cannot extract simple, universal legal rules about expert witness liability from the article.  Regardless, Mr. Dunn’s case evaluation is chilling and sobering for a litigation consultant or expert witness.  The practical lesson is that legal liability and damages may be asserted against even a highly experienced litigation consultant or expert and, sometimes, for an arguably inadvertent error.  For example, in Mattco Forge v. Arthur Young & Co., allegations by Mattco Forge that the AY litigation consultants delivered recreated job estimating sheets that were produced to the opposing parties as original documents were held to state a sufficient claim to proceed to trial.


In the article, Mr. Dunn explores the concept of witness immunity and the court’s goal of receiving objective, truthful testimony from witnesses, including experts.  At the same time, however, the courts recognize that an expert witness is paid for his or her services and is not just an innocent bystander and observer with respect to the case facts.


In the just-published first part of the article, Mr. Dunn first addresses the expert’s potential liability for pretrial proceedings as distinct from trial testimony.  The cases reviewed by Mr. Dunn support holding an expert liable for negligent work performed in the preparation for testimony.  Mr. Dunn’s article next considers whether an expert can be held liable for the testimony provided.  Some cases grant witness immunity for trial testimony and some do not.  In this part of the article, Mr. Dunn assesses the cases granting the immunity privilege.  Part two of the article, to be published in the next quarterly edition of Dunn on Damages, will address legal cases that do not grant witness immunity for trial testimony and will explore issues regarding proof of any damages that were caused by the negligent expert.  Every person providing expert testimony or doing litigation consulting should review this article to be aware of the professional liability risks.


Information about the Dunn on Damages journal is available at http://www.valuationproducts.com/dunn.html.  A complimentary copy of the first part of Mr. Dunn’s article can be requested from customercare@courtroominsight.com.

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