Third-Party Expert Witness Liability

At the end of September a number of years ago, Marybeth Davis, a mother who was also a registered nurse, brought her child Seth, who was having a seizure, to the local hospital. So violent were the child's seizures that he had to be transferred to a specialty care facility. There, the physician who cared for him found that he had been injected with a massive dose of insulin and was suffering from insulin poisoning. The doctor instructed the family pediatrician to report the incident as a case of child abuse. However, the pediatrician and Davis were apparently close, and it was not reported until the next incident (and even then, not by the pediatrician). Seth never fully recovered.

The following March, Davis' other child, Tegan, was admitted to the hospital. There, a nurse saw Davis inject Tegan with something and became suspicious of Seth's insulin poisoning. Further, a pathologist found that Tegan was the victim of a massive overdose of caffeine. He had found caffeine “beads” in Tegan's stomach, and police located a bag of similar beads in Davis' garbage. Tegan died of caffeine poisoning.

Criminal charges were brought against Davis, who defended against them with expert physician witnesses of her own. She claimed that Seth had a rare metabolic disorder, which caused his seizures, and that Tegan coincidentally died of the also rare Reye's Syndrome, or a genetic mimic of it. Davis, however, was found guilty of the attempted murder of Seth and the murder of Tegan. Her conviction was upheld on appeal. State v. Davis, 519 S.E.2d 852 (W. Va. 1999). Post-conviction relief was recently denied. State v. Davis, 2004 WL 2743514, __ S.E.2d ___ (12/2/2004).

It is difficult to imagine, then, the surprise that the emergency room doctor and the pathologist who diagnosed Tegan's caffeine overdose must have felt when Davis sued them and other state physician witnesses for their conduct in connection with her criminal trial. Specifically, she alleged that the doctors, as expert witnesses for the state, had negligently performed tests, negligently prepared for testimony, negligently testified, and otherwise failed to meet the “standards of science and medicine as it existed at that time.” Davis ex rel. Davis v. Wallace, 565 S.E.2d 386, 388 (W. Va. 2002). The trial court dismissed the complaint. It also found that the claims were “vexatious, wanton or oppressive [which] cannot be supported by a good faith argument.” As a sanction, the court ordered Davis to pay the full fees incurred by the doctors.

Davis appealed only that part of the decision imposing sanctions. The West Virginia Supreme Court reversed the sanctions order, first stating that generally in West Virginia “witnesses have been regarded as having an absolute immunity regarding their testimony at trial.” However, the court noted, an emerging body of case law and scholarly work questions the granting of absolute immunity to expert witnesses for in-court testimony or out-of-court preparations for trial including compiling data and generating reports. “Courts that have contemplated allowing expert witnesses to be held liable for their negligent behavior find that the typical policy concerns that promote absolute immunity for fact witnesses do not apply to expert witnesses,” stated the court. “Fact witnesses are often bystanders and are assumed to be unbiased. Expert witnesses, however, are generally procured by parties to testify because the testimony is expected to benefit the party procuring the expert.” The court then found that Davis could not be said to have filed her claim in bad faith because West Virginia law is not settled on the issue of expert witness immunity and there remains a “plurality of opinions” among those jurisdictions that have addressed the issue of expert witness malpractice.

Of course, both the pathologist and the treating physician who believed her patient had been intentionally poisoned with insulin should have fallen under the long-standing policy that what any witness states at trial is immune from any subsequent tort lawsuit. This is particularly so in criminal prosecutions, such as that of Davis. In Briscoe v. La Hue, 460 U.S. 325 (1983), the previously convicted plaintiff brought a federal Civil Rights Act claim against state and local police officers seeking damages for allegedly giving perjured testimony. The United States Supreme Court affirmed a dismissal of the complaint, explaining that the witnesses would receive absolute immunity for all statements that were “relevant to the judicial proceeding” because “the paths which lead to the ascertainment of truth should be left as free and unobstructed as possible.”

Davis, after all, had the ability to cross-examine both doctors, and present expert testimony of her own. However, the West Virginia Supreme Court noted that immunity from witness malpractice during and in preparation for testimony at trial was under attack. It relied heavily on law review articles and on one case in particular: James v. Brown, 637 S.W.2d 914 (Texas 1982).

The James Decision

Marguerite James was involuntarily hospitalized for observation because her son and daughter believed that she was “not of sound mind and not competent to manage her financial affairs.” They had applied for and received a court order for the observation. Three physicians at the mental facility agreed, finding her a “danger to herself or others,” and sent a report of those findings to the court. But James, apparently finding experts of her own, filed a writ of habeas corpus. She was released, and, on agreement, the competency proceeding was dismissed. She then sued the three doctors who sent the report to the court.

The case was dismissed at the trial court level but reinstated by the Texas Supreme Court in James v. Brown, 637 S.W.2d 914 (Texas 1982). First, citing the general rule that all witness statements are immune from suit for any reason, the court said, “The administration of justice requires full disclosure from witnesses, unhampered by fear of retaliatory suits for defamation. Thus, the doctors' reports to the probate judge in Mrs. James' mental health proceedings are absolutely privileged, and will not give rise to an action for defamation.” However, the court went on, “While the doctors' communications to the court of their diagnoses of Mrs. James' mental condition, regardless of how negligently made, cannot serve as the basis of a defamation action, the diagnoses themselves may be actionable on other grounds.”

Indeed, the court found they could constitute “negligent misdiagnosis — medical malpractice.” Consequently, the physicians — who were specifically asked by a court to observe James and report back to the court — had made themselves vulnerable to a malpractice suit by cooperating with the court. They were not immune, even in this quasi-judicial role.

Should Experts Be Subjected to Liability?

James has never been followed, although it has been cited over 200 times by other courts, including, of course, the Davis court. James has been recommended by at least two law review articles. One author urges that the hired expert be given only conditional immunity because “[w]hen the statement … may be proven to have been made with knowledge of its falsity or with reckless disregard for whether it was false or not, the statement should be actionable. McDowell, “Authorizing the Expert Witness to Assassinate character for Profit: A Reexamination of the Testimonial Immunity of the Expert Witness,” 28 U. Mem. L. Rev. 239 (Fall 1997). Another law review author suggests “the law should provide a remedy in tort for an adverse party harmed by incompetent testimony of a 'hired gun.'” Alford, “The Biased Expert Witness in Louisiana Tort Law: Existing Mechanisms of Control and Proposals for Change,” 61 La. L. Rev. 181 (Fall 2000). Both these law review articles cite the James decision, and both articles, along with the James decision, were cited by the Davis court.

However, both law review articles are premised on the perceived problem of hired experts who testify falsely. The “… expert can advance in court an opinion to which neither he nor his colleagues would subscribe beyond the doors of the courtroom.” Alford, supra at 217. And in McDowell, supra at 279, the author complains “there exists a very real risk, evidenced by a few egregious examples, that an expert will be hired by a party for the purpose of giving testimony that the expert knows is not accurate.” Both decide the present jurisprudence system is ill equipped to deal with the untruthful, biased, or merely neglectful hired expert witness.

It should not be overlooked that courts have long dealt successfully with non-expert witnesses guilty of the same infractions. Any party to a civil lawsuit has as great an interest in shading his or her testimony to support his or her claims as has any hired expert. Yet, we allow parties to testify, counting on cross-examination, the laws pertaining to perjury and the equal ability of the other side to present their views as methods for ensuring the jury to arrives at the truth. This is, after all, the reason for a trial: Presumably, the parties always disagree. Further, the defendants in both Davis and James were not “hired guns.” Indeed, in both cases, the plaintiff had “hired guns” to defeat their assertions made in the underlying trial. And, in both, the defendants were subject to cross-examination.

Conclusion

In this technical world, fact finders need experts, people to navigate them through a maze of the often arcane and mysterious facts and theories. Allowing parties to sue these experts when their testimony is not what the complainant wanted to hear does nothing to help the learning process of judges and juries.

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.

The Case of the Poisoned Children

At the end of September a number of years ago, Marybeth Davis, a mother who was also a registered nurse, brought her child Seth, who was having a seizure, to the local hospital. So violent were the child's seizures that he had to be transferred to a specialty care facility. There, the physician who cared for him found that he had been injected with a massive dose of insulin and was suffering from insulin poisoning. The doctor instructed the family pediatrician to report the incident as a case of child abuse. However, the pediatrician and Davis were apparently close, and it was not reported until the next incident (and even then, not by the pediatrician). Seth never fully recovered.

The following March, Davis' other child, Tegan, was admitted to the hospital. There, a nurse saw Davis inject Tegan with something and became suspicious of Seth's insulin poisoning. Further, a pathologist found that Tegan was the victim of a massive overdose of caffeine. He had found caffeine “beads” in Tegan's stomach, and police located a bag of similar beads in Davis' garbage. Tegan died of caffeine poisoning.

Criminal charges were brought against Davis, who defended against them with expert physician witnesses of her own. She claimed that Seth had a rare metabolic disorder, which caused his seizures, and that Tegan coincidentally died of the also rare Reye's Syndrome, or a genetic mimic of it. Davis, however, was found guilty of the attempted murder of Seth and the murder of Tegan. Her conviction was upheld on appeal. State v. Davis , 519 S.E.2d 852 (W. Va. 1999). Post-conviction relief was recently denied. State v. Davis, 2004 WL 2743514, __ S.E.2d ___ (12/2/2004).

It is difficult to imagine, then, the surprise that the emergency room doctor and the pathologist who diagnosed Tegan's caffeine overdose must have felt when Davis sued them and other state physician witnesses for their conduct in connection with her criminal trial. Specifically, she alleged that the doctors, as expert witnesses for the state, had negligently performed tests, negligently prepared for testimony, negligently testified, and otherwise failed to meet the “standards of science and medicine as it existed at that time.” Davis ex rel. Davis v. Wallace , 565 S.E.2d 386, 388 (W. Va. 2002). The trial court dismissed the complaint. It also found that the claims were “vexatious, wanton or oppressive [which] cannot be supported by a good faith argument.” As a sanction, the court ordered Davis to pay the full fees incurred by the doctors.

Davis appealed only that part of the decision imposing sanctions. The West Virginia Supreme Court reversed the sanctions order, first stating that generally in West Virginia “witnesses have been regarded as having an absolute immunity regarding their testimony at trial.” However, the court noted, an emerging body of case law and scholarly work questions the granting of absolute immunity to expert witnesses for in-court testimony or out-of-court preparations for trial including compiling data and generating reports. “Courts that have contemplated allowing expert witnesses to be held liable for their negligent behavior find that the typical policy concerns that promote absolute immunity for fact witnesses do not apply to expert witnesses,” stated the court. “Fact witnesses are often bystanders and are assumed to be unbiased. Expert witnesses, however, are generally procured by parties to testify because the testimony is expected to benefit the party procuring the expert.” The court then found that Davis could not be said to have filed her claim in bad faith because West Virginia law is not settled on the issue of expert witness immunity and there remains a “plurality of opinions” among those jurisdictions that have addressed the issue of expert witness malpractice.

Of course, both the pathologist and the treating physician who believed her patient had been intentionally poisoned with insulin should have fallen under the long-standing policy that what any witness states at trial is immune from any subsequent tort lawsuit. This is particularly so in criminal prosecutions, such as that of Davis . In Briscoe v. La Hue , 460 U.S. 325 (1983), the previously convicted plaintiff brought a federal Civil Rights Act claim against state and local police officers seeking damages for allegedly giving perjured testimony. The United States Supreme Court affirmed a dismissal of the complaint, explaining that the witnesses would receive absolute immunity for all statements that were “relevant to the judicial proceeding” because “the paths which lead to the ascertainment of truth should be left as free and unobstructed as possible.”

Davis, after all, had the ability to cross-examine both doctors, and present expert testimony of her own. However, the West Virginia Supreme Court noted that immunity from witness malpractice during and in preparation for testimony at trial was under attack. It relied heavily on law review articles and on one case in particular: James v. Brown , 637 S.W.2d 914 (Texas 1982).

The James Decision

Marguerite James was involuntarily hospitalized for observation because her son and daughter believed that she was “not of sound mind and not competent to manage her financial affairs.” They had applied for and received a court order for the observation. Three physicians at the mental facility agreed, finding her a “danger to herself or others,” and sent a report of those findings to the court. But James, apparently finding experts of her own, filed a writ of habeas corpus. She was released, and, on agreement, the competency proceeding was dismissed. She then sued the three doctors who sent the report to the court.

The case was dismissed at the trial court level but reinstated by the Texas Supreme Court in James v. Brown , 637 S.W.2d 914 (Texas 1982). First, citing the general rule that all witness statements are immune from suit for any reason, the court said, “The administration of justice requires full disclosure from witnesses, unhampered by fear of retaliatory suits for defamation. Thus, the doctors' reports to the probate judge in Mrs. James' mental health proceedings are absolutely privileged, and will not give rise to an action for defamation.” However, the court went on, “While the doctors' communications to the court of their diagnoses of Mrs. James' mental condition, regardless of how negligently made, cannot serve as the basis of a defamation action, the diagnoses themselves may be actionable on other grounds.”

Indeed, the court found they could constitute “negligent misdiagnosis — medical malpractice.” Consequently, the physicians — who were specifically asked by a court to observe James and report back to the court — had made themselves vulnerable to a malpractice suit by cooperating with the court. They were not immune, even in this quasi-judicial role.

Should Experts Be Subjected to Liability?

James has never been followed, although it has been cited over 200 times by other courts, including, of course, the Davis court. James has been recommended by at least two law review articles. One author urges that the hired expert be given only conditional immunity because “[w]hen the statement … may be proven to have been made with knowledge of its falsity or with reckless disregard for whether it was false or not, the statement should be actionable. McDowell, “Authorizing the Expert Witness to Assassinate character for Profit: A Reexamination of the Testimonial Immunity of the Expert Witness,” 28 U. Mem. L. Rev. 239 (Fall 1997). Another law review author suggests “the law should provide a remedy in tort for an adverse party harmed by incompetent testimony of a 'hired gun.'” Alford, “The Biased Expert Witness in Louisiana Tort Law: Existing Mechanisms of Control and Proposals for Change,” 61 La. L. Rev. 181 (Fall 2000). Both these law review articles cite the James decision, and both articles, along with the James decision, were cited by the Davis court.

However, both law review articles are premised on the perceived problem of hired experts who testify falsely. The “… expert can advance in court an opinion to which neither he nor his colleagues would subscribe beyond the doors of the courtroom.” Alford, supra at 217. And in McDowell, supra at 279, the author complains “there exists a very real risk, evidenced by a few egregious examples, that an expert will be hired by a party for the purpose of giving testimony that the expert knows is not accurate.” Both decide the present jurisprudence system is ill equipped to deal with the untruthful, biased, or merely neglectful hired expert witness.

It should not be overlooked that courts have long dealt successfully with non-expert witnesses guilty of the same infractions. Any party to a civil lawsuit has as great an interest in shading his or her testimony to support his or her claims as has any hired expert. Yet, we allow parties to testify, counting on cross-examination, the laws pertaining to perjury and the equal ability of the other side to present their views as methods for ensuring the jury to arrives at the truth. This is, after all, the reason for a trial: Presumably, the parties always disagree. Further, the defendants in both Davis and James were not “hired guns.” Indeed, in both cases, the plaintiff had “hired guns” to defeat their assertions made in the underlying trial. And, in both, the defendants were subject to cross-examination.

Conclusion

In this technical world, fact finders need experts, people to navigate them through a maze of the often arcane and mysterious facts and theories. Allowing parties to sue these experts when their testimony is not what the complainant wanted to hear does nothing to help the learning process of judges and juries.