EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Sunday, May 10, 2009

Immune System: Supreme Court Of Minnesota Finds That Court-Appointed Experts Are Entitled To Immunity From Lawsuits

Federal Rule of Evidence 706(a) (and many state counterparts) provides in relevant part that "[t]he court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection." So, let's say that the court appoints one of these experts and that expert acts in a manner that would constitute malpractice or breach of contract if the expert were retained by one of the parties? This was the situation presented to the Supreme Court of Minnesota in Peterka v. Dennis, 2009 WL 1228506 (Minn. 2009). Its conclusion? Court-appointed experts are entitled to immunity and cannot be sued by litigants.

Dennis involved divorce proceedings between Catherine Peterka and her husband. As part of those proceedings, the trial judge appointed Stephen G. Dennis, CPA, to value marital property in the form of business assets. And, according to Peterka, Dennis applied an incorrect method to value that marital property (Peterka also unsuccessfully claimed that Dennis was not appointed under Minnesota Rule of Evidence 706). Peterka thus sued Dennis and his employer Baune Dosen & Co LLP, for professional malpractice and breach of contract.

While the district court found that Dennis (and thus his employer) was protected by quasi-judicial immunity, the court of appeals reversed, landing the case in the laps of the Supreme Court of Minnesota. According to the Minnesota Supremes,

We have not previously considered whether experts appointed under Rule 706 are protected by immunity. A review of the reasoning from previous cases in which we have found entitlement to immunity suggests that extending immunity to Rule 706 experts is appropriate because public policy supports protecting such experts from harassing litigation and because such experts exercise discretionary judgment and provide assistance to the court.

In extending immunity to Rule 706 experts, the court focused on three factors:

Public Policy

According to the court,

The integrity and independence of the judiciary depends on the ability of court-appointed experts to make decisions “uninfluenced by any fear or apprehension of [personal] consequences....” Extending immunity also ensures that qualified experts will continue to serve the court, as otherwise “[n]o [person] would willingly serve ... or feel free to render an unpopular verdict...." The public policy concerns identified above support extending immunity to Rule 706 experts whose participation must not be chilled and who must be free to render independent and unbiased advice to the court without fear of harassing litigation by dissatisfied parties. Such experts provide an important service to the court and extending immunity to them will encourage their continued participation.

Discretionary Judgement

According to the court,

"When judicial immunity is extended to officials other than judges, it is because their judgments are 'functional[ly] comparab[le]' to those of judges-that is, because they, too, 'exercise a discretionary judgment' as a part of their function...." Discretionary judgment is not limited to the exercise of final adjudicatory decision-making; rather, we have extended quasi-judicial immunity to those who exercise discretionary judgment within government or legal proceedings....In Imbler, the United States Supreme Court explained the importance of extending immunity to prosecutors, as they must be free to make discretionary decisions about what suits to bring and how to bring them without fear of potential suits brought by disgruntled parties....In contrast, the Supreme Court has not extended immunity to court reporters, as their job is to accurately record what transpires in court and does not require any discretionary decision-making....As in Imbler, experts appointed under Rule 706 are appointed by the court to exercise discretionary judgment in advising the court. 

Assistance to the Court

According to the court,

The Third Circuit has articulately distinguished court-appointed neutral experts from privately retained experts, explaining that privately retained experts contract with a party, are paid by that party, and are expected "to some extent ... to provide a recommendation that favors their client...." In contrast, a court-appointed neutral evaluator is appointed to assist the court in performing its neutral judicial function, and they are "accountable to the court alone for the performance of [their] duties."

Based on these three factors, it seems to me that the court made the right decision, but I need to do some more research into the issue before reaching my own final conclusion.



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