Hired Guns, Once Protected By The Witness Immunity Doctrine, Can Become Targets

This article originally appeared in the Spring 2001 edition of the Civil Litigation Update of the Pennsylvania Bar Association, and the Summer 2001 edition of the American Bar Association Civil Litigation Newsletter.

Egregious errors and pre-trial settlements are among factors causing courts in this country to pare down the centuries-old rule that immunized participants in judicial proceedings from subsequent actions. However, a recent decision by the Third Circuit Court of Appeals, Hughes v. Long, 2001 U.S. App. Lexis 2860 (3d Cir. 2001), predicts the Pennsylvania Supreme Court will raise the drawbridge against further attacks on the rule.

The reasons for the slight relaxation of the witness immunity rule as it applies to experts are compelling. Originally, the rule applied only to testimony given in court. The witnesses were lay persons - farmers, cobblers, laundresses - who had no pretence of special knowledge. The courts simply wanted to create an atmosphere that would encourage witnesses to come forward without fear of later actions. At common law, the immunity contemplated was from libel or slander suits resulting from what was filed with the courts or what was uttered in the courtroom.

The concept of witness immunity, with cases recorded as far back as 1565, grew out of public policy that the judicial process is a truth-seeking function. As such, witnesses should be free to testify without fear of retaliation. Actions for slander for statements made in court simply were not allowed.

The doctrine was first analyzed by the United States Supreme Court in Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108 (1983), a ruling which extended immunity even to perjurers. The Court held that a convicted defendant could not bring a §1983 claim against a police officer who gave perjured testimony at his trial. The Court wanted to prevent retaliatory lawsuits and recognized the difficulty witnesses might have in proving the truth of their earlier testimony. Above all, the court wanted to ensure an atmosphere in which all relevant evidence could be placed before court and jury to enable them to arrive at the truth.Id.

The Pennsylvania courts have long held that statements made by any person involved in a judicial proceeding are immune from subsequent suit. The early decisions grew out of cases alleging libel and slander for opprobrious words uttered in court or stated in pleadings.

For example, in Kemper v. Fort, 219 Pa. 85, 67 A. 991 (1907), the court made an exhaustive study of judicial opinions here and in England on the issue of whether libel and slander could result from statements made in court. All of the authorities, though differing as to when immunity is absolute, agreed that when allegedly libelous matter found "…in pleadings is relevant and pertinent, there is no liability for uttering it. Public policy requires this, even if at times the privilege of immunity for false and malicious averments in pleadings is abused. Justice can be administered only when parties are permitted to plead freely in the courts and to aver whatever ought to be known without fear of consequences, if a material and pertinent averment should not be sustained." Id. at 93-94.

Recently, however, it has been recognized that most cases now are resolved before trial, often after one side receives his opponent's expert's report. If the expert has made a mistake in a pre-trial report, the litigation may be resolved before cross-examination. The common law witness immunity rule did not envision this type of error which may not be detected until long after the case has been resolved.

The expert's job is to assist the fact-finder. As cases grew in complexity, with judges and juries being called on to parse turgid scientific or mathematical data, the role of the expert witness has increased. The immunity, of course, extended to experts, whether summoned directly by the court or retained by an advocate. But as the need for their testimony increased, so did the scrutiny of their testimony, especially in light of the gatekeeper function announced in Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786 (1993).

With an increase in the amount of expert testimony, there are more reported cases in which the expert's mistakes have slipped through to the detriment of the litigant he was hired to assist. While the witness immunity rule also served to prevent subsequent lawsuits, the rule has left parties without redress for clearly demonstrable mistakes. In light of these developments, the courts have allowed minor alterations to the traditional rule.

While the immunity once applied only to slander and libel cases, the privilege was expanded to other types of judicial proceedings, including interference with contracts, Pelagatti v. Cohen, 370 Pa. Super. 422, 536 A.2d 1337 (1987), and intentional infliction of emotional distress, Thompson v. Sikov, 340 Pa. Super. 382, 490 A.2d 472 (1985).

In Moses v. McWilliams, 379 Pa Super. 150, 549 A.2d 950 (1988), a patient sued a physician alleging breach of confidentiality during the doctor's pretrial discussions with a medical malpractice defense attorney. The cases were dismissed and the Superior Court affirmed, saying witness immunity "…should and does extend to pre-trial communications. The policy of providing for reasonably unobstructed access to the relevant facts is no less compelling at the pre-trial stage of judicial proceedings." Id., 379 Pa. Super. at 166.

One influential decision was Bruce v. Byrne, Stevens & Associates Engineers, 113 Wn.2d 123, 776 P.2d 666 (1989), in which a land excavation resulted in the loss of lateral support for the adjacent property. The disgruntled neighbors sued. The Byrne Stevens engineering firm was hired to calculate the cost of restoring the land and to give testimony in that regard. Plaintiffs were awarded damages but when they had the restoration work done it cost twice what the engineers had predicted. The plaintiffs then sued their former experts, but the Washington Supreme Court stretched witness immunity to encompass trial preparation such as writing reports. Applying the traditional rule, the court found the engineers immune from suit.

The same rationale was applied in Panitz v. Behrend, 429 Pa. Super. 273, 632 A.2d 562 (1993). In that case, a physician, Dr. Panitz, was retained by plaintiff to testify in a personal injury action. She gave the expected testimony on direct examination. However, when faced with cross-examination she could not explain inconsistencies with statements she had made in other lawsuits. Plaintiff lost. Dr. Panitz submitted a bill for her testimony, but counsel declined to pay it and counter-claimed for gross negligence. The court felt it would be "disingenuous" to argue that "it was not the in-court testimony that caused the loss but the pre-trial representations about which what the in-court testimony would be." Id., 632 A.2d at 565. The court held that the privilege applies to all communications that are part of judicial proceedings.

In addition, the court recognized that Dr. Panitz was a retained or "friendly" expert. Certainly no action brought by an adverse party would be permitted, as to do so would open the door to endless litigation and would quell the willingness of experts to participate in the judicial process. Testimony would too frequently give rise to a subsequent suit by the unsuccessful party. The court recognized that Dr. Panitz fully complied with her oath and honestly acknowledged the inconsistencies with which she was confronted. "The primary purpose of expert testimony is not to assist one party or another in winning the case but to assist the trier of the facts in understanding complicated matters." Id., 632 A.2d 562. To rule otherwise would go against the court's truth-seeking function.

However, experts will be held accountable if their mistakes are so egregious as to clearly breach the standard of care of one in that profession. In LLMD of Michigan, Inc. v. Jackson-Cross Co., 559 Pa. 297, 740 A.2d 186 (1999), a financial expert was retained to establish lost profits arising from failure to provide financing to purchase and rehabilitate property. During cross-examination, it was established that the plaintiff's damages figures contained a mathematical error which the witness could not accurately compute on the stand. After the testimony was stricken, the $2.7 million loss was settled for $750,000.

Suit was brought against the erring expert but summary judgment was granted, relying on the ruling in Panitz. The Supreme Court reversed, holding that "the judicial process will be enhanced only by requiring that an expert witness render services to the degree of care, skill and proficiency commonly exercised by the ordinarily skillful, careful and prudent members of their profession." Id., 740 A.2d at 307.

Having said that, the court went out of its way to distinguish Panitz and to limit its decision. The Panitz ruling, as explained in LLMD, supra, was consistent with the two-fold public policy of ensuring truthful testimony and protecting the judicial process. Allegations that the expert was negligent cannot be predicated on the substance of the testimony. "It is imperative that an expert witness not be subjected to litigation because the party who retained the expert is dissatisfied with the substance of the opinion rendered by the expert." Id., 740 A.2d at 191.

Nevertheless, allowing clear and undeniable errors by professionals to go without redress would do nothing to further that public policy. "The goal of ensuring that the path to truth is unobstructed … is not advanced by immunizing an expert witness from his or her negligence in formulating that opinion." Id.

The Third Circuit Court of Appeals has predicted that the Pennsylvania Supreme Court will not extend the LLMD ruling to include court-appointed witnesses. Hughes v. Long, supra. Hughes appealed the district court's dismissal of his civil rights and state claims against Lynn Long and Patrick McHugh. Long was appointed by the court to conduct a child custody evaluation as part of a divorce proceeding and to make recommendations. Although she was appointed by the court, Long's fee was paid by Mr. and Mrs. Hughes. Id.

Hughes was unhappy with the recommendation and retained his own expert. Hughes alleged that the expert was given erroneous information by Long. The Third Circuit noted that Long had been appointed by the court and, therefore, enjoyed judicial immunity. The LLMD ruling that experts are not immune from professional malpractice suits still would not allow a case to proceed against an impartial, court-appointed expert. Id, at 21-24. While the LLMD decision did not "expressly prohibit" malpractice actions against court-appointed witnesses, the Third Circuit predicated that, "given the unique and essential role of court-appointed witnesses" the Supreme Court would not allow such an action. Id. at 26. Hughes did not involve a privately retained expert or a professional malpractice action. Rather, the Hughes case involved breach of contract, fraud, abuse of process and other theories.

The Panitz ruling, and the centuries of precedent behind it, will shield a witness from negligence actions resulting from giving an honest opinion. Yet the truth-seeking function will not be enhanced if expert witnesses, whose immunity begins long before any testimony is taken, is not served by sloppiness and miscalculation. The judicial interest in finding the truth will only be served if expert witnesses are held to the same standard of care in preparing for litigation as they would in their other professional endeavors.