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Can an Expert Witness be Sued?

In usual circumstances, an expert witness is provided immunity from lawsuit. This is due to an immunity doctrine established by the United States Supreme Court in 1983.

Before the laws changed, this even meant that if the expert statements issued in court were false or made with malice, the professional would still maintain his or her immunity. This immunity is allocated to expert witnesses for multiple reasons. If the person felt fear of being hired for the case due to the potential he or she may be held liable for some reason, he or she may decide to refuse the offer. Additionally, the testimony given could be altered due to fear of potential lawsuits.

Since 1983, there have been certain instances where the expert witness has been sued for various reasons. One of these was due to the testimony being changed because the professional discovered that her prior examination of the details was false and it needed to be updated for the truth to be revealed. Because of these actions, the law firm that hired her would not pay
her for the case. She then sued for her payment, and the lawyers countersued for professional malpractice in this situation. These circumstances may lead to further understanding whether immunity still holds for these individuals.

Negligence of the Expert Witness

While immunity protects an expert witness from having to defend himself or herself from a lawsuit and payout out damages to others, there are instances where he or she may be negligent. When the witness does not testify with truth and accuracy, he or she may be sued for professional malpractice or negligence. If the statements given by the expert witness are not as the lawyer would like, the court may still determine that his or her immunity holds. However, some expert witnesses may not detail out the facts of the case by his or her own knowledge and expertise. This may be considered negligence. This is because the professional is hired to explain certain aspects or elements of a claim through skills and knowledge he or she acquired in the specific field. If someone else researches the information and this is used as testimony, the hired expert witness was not performing his or her job.

If the job of the expert witness has been outsources, there may be errors in the findings. If the professional must calculate certain numbers or recreate the scene of the incident, it is imperative these actions are completed without error as best as possible. However, when the expert acts with negligence in these matters, his or her testimony may be stricken from the record when the findings are useless to the case. This means the lawyer that hired him or her has wasted time and resources on this person. This could lead to the plaintiff settling for less than could have been possible if the testimony were useful to the claim. This could lead to a suit for negligence, breach of contract or professional malpractice.

Retainer Contractual Agreement

While witness or expert witness immunity is usually in place to protect these persons from scrutiny, there are precedents created by the courts when the individual has acted outside of what may be in a contractual agreement for provided testimony. In effect, this means that only certain actions taken by an expert witness may be viewed as litigious. He or she may not be held liable just because another expert or professional challenges his or her findings of the details of the case. Difference of opinion is not considered professional negligence.

Medical malpractice cases often have different of opinion on what may have been accomplished during procedures, which products to use and how certain procedures may affect a patient. Some of these statements and details provided may appear to be foolish, but this does not open the expert witness to negligent lawsuits. As long as the testimony is based on his or her own experience and understanding of the situation, the professional has a foundation for providing this information. However, when no foundation is available for the testimony, there is the possibility that he or she could be sued for negligence.

Expert Witness in Cases

It is the job of the expert witness to provide testimony for a case based on the subject. His or her background into the field is usually invaluable in explaining and detailing out what occurred or how it affects either the defending party or the plaintiff. When acting professionally, these experts retain their immunity in the court room.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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