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Liability Exposure When Experts Flub<br><font size="-1"><b><i>Part Two of a Two-Part Article</b></i></font>
Editor's note: Last month, the author began discussion of the consequences of retaining an expert witness who errs on the stand. Should the expert be subject to lawsuit for damages? Could the attorney who hired him/her be held liable? The analysis concludes here.
What is the true relationship of a law firm and retained experts? The court in Forensis Group, Inc. v. Frantz, Townsend & Foldenauer, 2005 Cal. App. LEXIS 929 (Cal. App. 4th Dist., June 9, 2005) (discussed in Part One of this article) stated (citing a treatise) that the duty of an attorney who hires an expert witness is to “make sure that the expert, particularly the inexperienced expert, understands the governing legal principles and elements that each party to the litigation must prove in order to prevail.”
Further, an expert “is not a mechanical toy that can simply be wound up and turned loose. Regardless of the expert's skill, it is the lawyer's responsibility to make sure that his or her expertise is presented to the trier of fact in an admissible and persuasive way. To accomplish this task, the lawyer needs to understand the substantive details of the expert's testimony and field of expertise.” Forensis Group, 2005 Cal. App. LEXIS 929, at *35-*36.
The appellate court concluded that experts ordinarily should be permitted to sue the law firm for equitable indemnification of professional malpractice damages for which they have become liable. Policy issues to the contrary were not insurmountable and did not outweigh yet another public policy: “[T]hat of protecting the professional interests of all expert witnesses generally to participate in litigation, and the interests of the judicial system in obtaining the assistance of such expertise. These interests are significant enough to warrant an expert's being accorded a right to recourse against those responsible, if any professional negligence should occur on the part of counsel who retained those expert witnesses, with respect to presenting their evidence and defining the proper scope of the experts' duties and obligations within the litigation setting, if any harm to the client should occur. Such a right to recourse for expert witnesses could include equitable indemnity claims.” Id., LEXIS at *40.
Conclusion
The California and Pennsylvania decisions expose a bitter reality: Sometimes, professional services attending litigation fall below the mark. That causes some lawsuits to be filed. Legal malpractice is, in a sense, a sleeping tiger capable of being aroused, and of pouncing and biting hard. Experts and other litigation support professionals are likewise potential targets for suit when they are negligent and cause loss. What perhaps is not fully appreciated is that an expert's flub may implicate the lawyer's own exposure. Given the purported “duties” a lawyer may have regarding the retention, preparation and presentation of experts, as the California decision posits, lawyers may even become the choice “deep pocket” targets when experts who botch their assignments have limited resources.
***** Michael Hoenig is a member of Herzfeld & Rubin. This article also appeared in The New York Law Journal, an ALM sibling publication of this newsletter.
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