Is There a Remedy When Your Expert’s Error Costs You Money?

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In Maine, witness testimony in judicial proceedings has been absolutely immune for over one hundred years. This immunity addresses whether the testimony gives rise to actions for defamation. Does this mean that an expert witness can not be sued for professional negligence?

Expert witness: The cost of errors

What do you do when your expert’s error costs you money?

Consider the following set of facts.

You represent a participant in a complicated real estate deal gone sour. As often happens, the principals to the failed deal sue one another to recover for claimed losses. Part of your responsibility is to prove the extent of damages your client suffered as a result of the claimed breach.

You consult your colleagues and find a consensus candidate to serve as your expert. His resume shows unquestionable competence, experience and expertise in the relevant field. He gives you a list of the pertinent records he requires, and you comply. His report is favorable, and you are pleased with the seven-figure damage calculation. You retain him and name him as your financial expert.

At trial, your damages case falls apart as the defense lawyer, through cross-examination, exposes a critical error in your expert’s calculations. Carefully taking your expert through his methodology, the defense lawyer demonstrates that a simple but fundamental mathematical error in your expert’s calculations renders his numbers meaningless. Unable to explain the error because he relied on a computer program to perform the calculations, the expert’s testimony is stricken on defendant’s motion. Suddenly, you are left with no proof of damages, and therefore no case.

Faced with the prospect of going down in flames, you settle for a fraction of the case’s value before the error was exposed. Only later do you learn that the corrected calculation your expert was unable to provide from the stand would have resulted in damages far beyond the emergency settlement you were forced to accept.

Doctrine of witness immunity: Can you recover your losses?

What do you do? Does your client have a claim against the expert for breach of contract and professional negligence? Or is such a claim barred by the doctrine of witness immunity?

In Maine, testimony in judicial proceedings has been absolutely immune for over one hundred years. Garing v. Fraser, 76 Me. 37, 42 (Me. 1884). So long as the statements are relevant to the judicial proceeding, the privilege remains intact. Dineen v. Daughan, 381 A.2d 663 (Me. 1978). Only where the statements are expanded or repeated outside the courtroom or relevant pleadings does the absolute immunity even come into question. E.g., Vahlsing Christina Corp. v. Stanley, 487 A.2d 264 (Me. 1985). But this immunity addresses whether the testimony gives rise to actions for defamation. These cases do not address the issue of negligence or lack of due care.

According to the Pennsylvania Supreme Court, immunity does not protect an expert’s professional failure to use due care. In LLMD of Michigan, Inc. et al. v. Jackson-Cross Company et al., 740 A.2d 186, LEXIS 3206 (Pa. 1999), on the facts substantially the same as those set out above, the Pennsylvania Supreme Court upheld the right to sue the expert for breach of contract for failing to deliver an accurate or workmanlike lost profits calculation. It also upheld the right to bring suit for professional negligence, for failure to exercise the degree of care and skill ordinarily exercised in the expert’s field.

The Pennsylvania court rejected the expert’s argument that the in-court status of his statements immunized him from liability for those statements. Id. At 188. The court acknowledged the unqualified immunity of in-court testimony, similar to Maine’s, but did not extend it to protect the expert from professional negligence. Id., citing Binder v. Triangle Publications, Inc., 442 Pa. 319, 275 A.2d 53 (Pa. 1971).

It should be noted that an expert who concedes arguments and points raised by the opposition during cross-examination does not subject himself to suit. The Pennsylvania court was careful to distinguish between dissatisfaction with the substance of your expert’s testimony and proof that your expert did not meet the standard of care in his profession in formulating his opinions. In Panitz v. Behrend, 632 A.2d 562 (Pa. Super. 1993), a party refused to pay its expert’s fee following trial because the expert conceded points favorable to the opposition during cross-examination. The expert sued to recover his fee, and the party counterclaimed against the expert, claiming that the expert did not meet her contractual obligations and was negligent in offering her testimony.

The Panitz court dismissed the counterclaim, on the basis that an expert witness should not fear civil liability based upon truthful answers during in-court cross-examination on conflicting evidence in the record. The Pennsylvania court distinguished LLMD of Michigan v. Jackson-Cross Company from Panitz because Jackson-Cross did not sue its expert because of the substance of his opinion, but rather because he had been negligent in performing the underlying calculations required to determine the lost profits.

Outlining the test for future cases, the court said “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.” 740 A.2d. at 190.

Do Pennsylvanian rulings apply in Maine?

For Maine, the challenge of applying this decision is outlined in the Pennsylvania court’s dissent. Maine’s absolute immunity is similar, and Pennsylvania’s rationale for an exception to expert witness immunity is relevant here. The problem, as pointed out by the dissent, is that the test enunciated illuminates no bright line. If an attack on the expert for negligence is allowed while an attack on the substance of the expert’s testimony is not, drawing distinctions will be difficult.

Said the dissenting opinion, “I fear that by establishing this unworkable distinction, we will be sowing confusion in the lower courts and the practicing bar.” But where an expert makes a fundamental error that no ordinarily careful and prudent member of his profession would make, and your client suffers as a result, a little confusion is a small but necessary price to pay.