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Third-Party Expert Witness Liability

By R. Collin Middleton

The opinions offered at trial by expert witnesses are running an increasingly greater gamut of scrutiny. First, they are subject to the judicial scientific reliability tests of Daubert v. Merrell Dow Pharmaceutical Inc., 507 U.S. 579 (1993). Once that hurdle is cleared and the opinion given, the experts can be sued by the party who hired them, both in tort and contract, if the opinion did not live up to the party's expectations.

All of these tests and liabilities are placed upon expert opinion testimony, yet it is universally recognized that expert testimony is absolutely necessary for judges and juries to understand the factual issues needed to be resolved in our increasingly technical world. However, rather than expanding the protection of testimonial immunity or quasi-judicial immunity to protect the testimony and reports of expert witnesses, that immunity may be becoming further eroded to allow tort claims made by the opposing side.

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