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Warning to Expert Witnesses!

In a surprising change of the common law tradition of witness immunity, the Supreme Court of Pennsylvania has recently held that the doctrine of witness immunity does not protect expert witnesses who are negligent in forming their opinions. LLMD of Michigan, Inc. v. Jackson-Cross Co., 1999 WL 972180 (Pa. 1999).

LLMD hired Jackson-Cross to provide expert testimony on lost profits resulting from a breach of contract. Using a computerized spreadsheet which he had not personally prepared, but which had been prepared in his office, the Jackson-Cross expert testified that LLMD had suffered a loss of $6 million. On cross, however, the defense revealed that the calculation contained a mathematical error. Because he had not performed the calculations himself, the expert could neither explain the error nor recalculate the lost profits on the stand; he conceded that the calculation was wrong due to the error. The court struck the expert witness' testimony and the Plaintiff was forced to accept a settlement offer of $750,000. Jackson-Cross later gave LLMD a new calculation, showing lost profits of only $2.7 million dollars.

LLMD sued Jackson-Cross for professional malpractice. The trial court granted summary judgment for Jackson-Cross on a variety of grounds, after denying summary judgment on the issue of witness immunity. LLMD appealed, and the Superior Court affirmed on the grounds of witness immunity. LLMD appealed again, and in a 4 to 2 decision, the Supreme Court of Pennsylvania reversed, changing the scope of the doctrine of witness immunity by holding that the doctrine does not protect expert witnesses who are negligent in forming their opinions.

The Court recognized that the doctrine of witness immunity is founded on the policy "that the paths which lead to the ascertainment of truth should be left as free and unobstructed as possible." Under the protection of immunity, witnesses should not be afraid to come forward for fear of liability or be inclined to color testimony. But, the Court observed that shielding professionals from their own negligence does not further the policies of truth and free disclosure. The Court stated that the true furtherance of the law "will be enhanced. . . by requiring that an expert witness render services to the degree of care, skill and proficiency commonly exercised by the ordinary skillful, careful and prudent members of their profession."

The Court was careful to distinguish the Superior Court's prior holding in Panitz v. Behrend, 429 Pa. Super. 273, 632 A.2d 562 (Pa. Super. 1993) allocatur denied, 539 Pa. 694, 653 A.2d 1232 (Pa. 1994). In Panitz, the Superior Court declined to hold an expert witness liable where she admitted on cross-examination that some of her testimony was inaccurate. Justice Zappala, writing for the majority, maintained that the holding in LLMD is consistent with Panitz; while experts may be sued for professional negligence, experts may not be sued by a party that is simply "dissatisfied with the substance of the opinion rendered by an expert." Therefore, the Court's limited holding will NOT expose experts to liability when his opinions are challenged by "another expert or authoritative source."

In dissent, Justice Cappy, joined by Justice Castille, criticized the majority's "unworkable and radical departure from our accepted law regarding witness immunity." The dissent argues that there was "no bright line" between the professional negligence in forming an opinion and the substance of an opinion. Justice Cappy further stated that the decision might adversely affect the policies of truth and free disclosure by influencing experts to testify only favorably.

What Does This Mean?

Pennsylvania now joins other states (including Alaska, California, New Jersey, Missouri and Texas) in abrogating witness immunity to the extent that an expert is negligent in forming his or her opinion. See Lythgoe v. Guinn, 884 P.2d 1085 (Alaska 1994) (holding that psychologist could be sued for negligence and intentional torts in a custody dispute); Forge Inc. v. Arthur Young & Co., 6 Cal. Rptr. 2d 781 (Cal. Ct. App. 1992) (holding that the litigation privilege did not bar suit against expert who lost damage information and created fraudulent documents); Murphy v. A.A. Mathews, 841 S.W.2d 671 (Mo. 1992) (holding that witness immunity does not bar suit against a expert who is negligent in the preparation of services); Levine v. Wiss & Co., 478 A.2d 397 (N.J. 1984) (holding that immunity did not bar suit against an accountant for deviating from accepted accounting standards); James v. Brown, 637 S.W.2d 914 (Tex. 1982) (holding that immunity did not bar suit for negligent misdiagnosis-medical malpractice against a psychiatrist for communications made in an involuntary hospitalization proceeding).

It is important, therefore, for all experts to understand that there is no longer any absolute witness immunity for expert testimony in Pennsylvania.

While it may seem fair and logical to some to hold a professional expert liable on account of a mathematical error, there is no guarantee that the law will always so clearly discern "negligence in forming an opinion" if the facts are less compelling than in LLMD. There may be no "bright line" rules to distinguish professional negligence from a new or controversial expert theory, and while the Court in LLMD attempts to paint a bright line, experts would be wise to check and double check their reports, especially when they contain calculations, whether or not performed by others. Only time will tell whether the decision in LLMD will create a new class of litigation and exposure, and thereby change the dynamics of engaging expert witnesses as a result of this new risk.

*article courtesy of Michael A. Finio and Christine Stieb Steckler of Saul Ewing, /

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