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

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Thursday, October 25, 2012

Risk Analysis: The L'Aquila Earthquake Trial & Witness Immunity

My colleague Aparna Polavarapu sent me a link to a CNN article, which noted that

Earthquake experts worldwide expressed shock at the manslaughter convictions of six Italian scientists who failed to predict the deadly L'Aquila quake, warning that the decision could severely harm future research.

Two scientists resigned their posts with the government's disaster preparedness agency Tuesday after a court in L'Aquila sentenced six scientists and a government official to six years in prison. The court ruled Monday that the scientists failed to accurately communicate the risk of the 2009 quake, which killed more than 300 people.

In response, "[s]eismologists were aghast..., noting that earthquakes remain impossible to forecast with any kind of accuracy." Specifically, Professor David Oglesby opined that

"If scientists can be held personally and legally responsible for situations where predictions don't pan out, then it will be very hard to find scientists to stick their necks out in the future...."

But prosecutors successfully 

argued that the scientists gave "inaccurate, incomplete and contradictory information about the dangers" facing L'Aquila at a meeting a week before the magnitude-6.3 quake. The experts determined that it was "unlikely" but not impossible that a major quake would take place, despite concern among the city's residents over recent seismic activity." 

The takeaway for Professor David Spiegelhalter was that the 

"L'Aquila trial shows public scientists need to take media communication very seriously," he wrote on his Twitter account. "And get indemnity."

So, could the same thing happen to American experts?

The answer is: It depends. As I noted in a prior post, the Supreme Court of Minnesota granted quasi-judicial immunity to a CPA appointed as an expert witness in a divorce case. This decision pretty much seems to be par for the course. According to the United States District Court for the District of New Jersey in D.T.B. ex rel. O'Callaghan v. Dangler, 2006 WL 2938777 (D.N.J. 2006), "[n]ationally, courts have held that [a court-appointed expert] is entitled to, at the very least, qualified immunity." 

But what about an expert who is not court-appointed? In Finnegan v. Myers, 2011 WL781582 (N.D. Ind. 2011), the plaintiffs

sued several defendants in this case, including Dr. Antoinette Laskey, a licensed physician hired by the Department of Children Services ("DCS") to give a medical opinion as to whether the death of Plaintiffs' 14–year old daughter, Jessica Salyer, was due to accident or parental abuse.

Without consulting the coroner or any other investigators, Dr. Laskey wrote an opinion letter that concluded that the death resulted from parental abuse: a fatal beating. She then gave deposition testimony to the same effect while admitting (1) that she was not qualified to determine the cause or manner of death; and (2) that she was unfamiliar with Jessica's medical conditions, which were that 

Jessica was born with a congenital heart condition that required multiple surgeries, concluding in a 1996 surgery (the Fontan procedure), which left her with a two-chambered, rather than a four-chambered, heart....Even with good care, the mortality rate for Fontan patients is high, with ten year survival rates in the 70–75% range....Jessica also had a fourth generation seizure disorder, for which she took 3 medications: Warfarin, Digoxin and Phenytoin (brand name Dilantin)....Warfarin in particular is a high risk drug as it can result in bleeding, bruising, and is linked to a risk of brain hemorrhage. 

Dr. Laskey, however, did not testify at trial.

The plaintiffs subsequently brought a Section 1983 action against Dr. Laskey, who sought witness immunity. In response, the court first acknowledged that "[i]t is true that witnesses are given absolute immunity under § 1983 for in-court testimony, in order to permit them to testify truthfully without fear of litigation or potential liability." But it then found that

it is undisputed that Dr. Laskey never testified as a witness in any court relating to this litigation..., or the criminal cases, or the Coroner's Inquest. Yet Dr. Laskey contends that this immunity should extend to her deposition testimony in this case. Even assuming, arguendo, that her deposition testimony was protected (and the Court makes no such finding at this point in time), this does not save Dr. Laskey from prosecution under Section 1983. Plaintiffs' allegations about Dr. Laskey stem from her October 2006 opinion letter, which was not signed under oath.

I'm not sure that I agree with the court's conclusion. The way that I see it, DCS (1) wanted Dr. Laskey to write her opinion letter (2) so that she could then use it as the basis for her deposition testimony (3) which she could then use as the basis for her trial testimony. When DCS then saw what a disaster Dr. Laskey was during her deposition, it cut ties to her, which is why she then did not testify at trial. 

Here are my thoughts: First, I don't like the court equivocating on the issue of whether deposition testimony triggers witness immunity. If the goal of such immunity is to facilitate truthful testimony, why should it matter whether this testimony takes place at trial or during a deposition (especially because deposition testimony is admitted in many cases under a hearsay exception)?

Second, I'm not quite sure of the import of the court's ruling. Is the court saying that if Dr. Laskey had testified at trial, the letter, her deposition testimony, and her trial testimony would have been immunized? If that's the case, I don't like the idea of immunity hinging on whether a party ends up calling a witness at trial or decides against calling the witness for whatever reason. Again, if a witness gives a deposition under the understanding that she will testify at trial, why should she be denied immunity simply because the party changes its mind?

But what I actually think that the court is saying is that even if a witness testifies, any reports/opinion statements/etc. by the witness (and possibly deposition testimony) are still not subject to witness immunity. I disagree. When a party hires a potential expert witness, the general understanding is that the expert will prepare some type of report and use that report as the basis for her testimony at trial. For instance, in an arson case, we would have an arson report. In an accident case, we would have an accident report. And so on and so forth.

That being the case, and, if we have the witness privilege so that witnesses can testify honestly, why wouldn't we cover such reports under the penumbra of the witness privilege? It seems preposterous that  we would immunize an expert's testimony but not the report that the expert prepared to serve as the basis for her expert testimony.  

Now, I should note that none of the above is intended to defend the actions of Dr. Laskey. But the point isn't that Dr. Laskey should be immune from civil (and possibly criminal) liability. The point is that the precedent seemingly established in Finnegan v. Myers means that an expert who does diligently do her job could be sued based upon a disgriuntled litigant being unhappy with the expert's results. And what it means is that an American scientist who drafts an opinion paper on the risk of an earthquake/hurricane/etc. could face similar consequences to the scientists in Italy.

-CM

http://lawprofessors.typepad.com/evidenceprof/2012/10/my-colleagueaparna-polavarapusent-me-a-link-to-acnn-article-which-noted-that-earthquake-experts-worldwide-expressed-shock.html

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Comments

This issue strikes at the heart of the reason why I have started following your blog. What interests me is the different methods of truth-seeking employed by various professional disciplines, an issue that I think is poorly understood and which creates many problems when truth as it is understood within one discipline is imported into a different disciple willy nilly. This often comes to a head in the intersection between science and law but is by no means limited to that context. From where I sit legal evidence is strictly a methodological issue within the larger framework or legal truth seeking; what counts as data.

While science and law can both be seen as tools to seek the truth the way they go about that seeking is quite different. What a scientist considers to be truth and what the law consider to be truth are not a perfect match in terms of a Venn diagram. There is overlap, to be sure, but not equality.

This is the real disconnect in the Italian finding. The court found that scientists gave "inaccurate, incomplete and contradictory information about the dangers" but from a scientific point of view that's just science. The court found them guilty of nothing other than being scientists. Science is not practiced in an adversarial fashion.

This shouldn't mean that I agree with your larger point however. I think American law has been badly damaged by the bogey man of DNA. Science isn't practiced all the same and the methods of truth seeking employed by social scientists are quite different that the methods of truth seeking employed by physical scientists. And I, personally, would not give any credence to anything a CPA said because they just practice voodoo as far I as am concerned.

The rub in your statement CM that the witness deserves protection to encourage truth seeking is that it assumes that there is a common metric under which the truth is understood. There isn't; there simply isn't. When the law takes a scientific truth and imports into the judicial process without careful reflection it creates a mess. SCOTUS's Atkins decision is a prime example. It might make great law but it's terrible psychology, terrible science.

Posted by: Daniel | Oct 25, 2012 1:15:12 PM

Danilel: These are good points, and I'm not sure that I agree with witness immunity. But my point with this post is simply that if you are going to grant an expert witness immunity for her trial testimony, there's no good reason for not immunizing her deposition testimony and/or expert reports/opinions.

Posted by: Colin Miller | Oct 25, 2012 3:51:32 PM

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