Thursday, October 19, 2017

Suing Your Own Expert Witness

A law firm was sued by an accident reconstruction expert that it had retained in a case involving a motorcycle accident.

Defendants – an attorney and his law firm – represented a married couple in an action against the Harley-Davidson Motor Company Group in relation to an accident that occurred when the couple's motorcycle lost power

The law firm filed counterclaims against the expert.

The counterclaims were dismissed in part by the New York Appellate Division for the Third Judicial Department.

[The law firm] Defendants argue that the witness privilege does not bar actions against a party's own expert for breach of contract or malpractice, just as a party can proceed against his or her attorney for legal malpractice based upon conduct that occurred during a trial. Plaintiff argues that an expert witness is absolutely immune from liability for claims that arise out of his or her testimony provided in prior litigation.

We conclude that a party cannot hold its own expert liable for the content of his or her testimony in prior litigation, but may pursue claims for negligence, professional malpractice, breach of contract or similar causes of action due to the expert's alleged failure to properly prepare for the trial or to perform agreed-upon litigation-related services. Although an expert may not be held liable for the substance of his or her prior testimony or the opinions expressed therein, such testimony may be used as evidence in connection with these other types of causes of action.


...part of defendants' second counterclaim is based entirely on plaintiff's opinions and answers during trial, i.e., on his testimony itself. Plaintiff is protected by the witness privilege for any claims arising directly from this testimony. On the other hand, part of the second counterclaim is based on plaintiff's pretrial actions or failures to perform. For example, defendants alleged that plaintiff failed to update his expert disclosure or inform defendants that he had examined a motorcycle of the same variety that was involved in the underlying action. These allegations relate to plaintiff's pretrial preparation and his obligations to defendants as a retained expert, so they are not barred by the witness privilege (cf. Rehberg v Paulk, 566 US at 370 n 1). Although those allegations were supported by plaintiff's testimony, they were viable even without that testimony. Thus, plaintiff was entitled to only partial dismissal of that counterclaim.

(Mike Frisch)

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