Expert Witness Immunity
There are ITIC Members who offer to act as an expert witness as a regular part of their professional practices. There are, however, a number of other Members who are occasionally asked to act in this capacity without specifically seeking the appointment. This article will look at the role of being an expert witness and the potential liabilities.
The English Courts have commented on the role of the expert witness and made the following points:
1. The role of an expert witness is to provide independent assistance to the court and the parties by giving an objective unbiased opinion in relation to matters within their area of expertise. It is important that the expert witness should never assume the role of advocate for the parties.
Many peoples’ view of experts is summed up by the following story. A doctor was giving evidence in a case where an employee was suing for a work related injury. Asked by the defendant’s lawyer whether in his opinion the claimant was inventing his symptoms the doctor replied “yes certainly”. The doctor then paused and added “unless I have been retained by the plaintiff in which case I would accept them as post-traumatic stress”. Experts are not there to “take sides”. They must maintain their independence.
2. The expert’s evidence is to explain technical matters or give evidence of market practice. This is very different from the expert witness stating what he himself would have done in similar circumstances. In addition the expert’s role is to place evidence before the court for the court to decide upon.
One of the most common mistakes made by inexperienced experts is to attempt to “solve the case”. It is not the expert’s role to replace the judge.
3. The expert should co-operate with experts employed by the other party in attempting to narrow down technical issues in dispute. Experts should attend without prejudice meetings for the purpose of trying to find areas of agreement and to define areas where the experts disagree. This will be set out in a joint statement of experts for the court.
Although it is common for people to regard one expert as “theirs” and the other experts as the “opposition”, the process between experts is intended to be co-operative and aims to provide an unbiased report for the court to rule upon. This is very different from providing support for one party’s position.
4. The expert’s evidence should be seen to be an independent product of the expert uninfluenced by the principal’s position in the litigation.
A survey conducted by a training company several years ago found that one in ten expert witnesses had been pressurised by a lawyer into changing their evidence before the case had gone to court. In 1993 in the “Ikarian Reefer” the Court of Appeal pointed out that the expert evidence given on behalf of a ship owner was clearly not independent.
5. The expert witness should always make it clear when a particular question or issue is outside his knowledge. Inexperienced experts sometimes fall for the temptation of attempting to assist by giving an opinion of the matter without staying within the strict confines of their expertise. If this is revealed by cross-examination it can lead to embarrassment as well as discrediting the expert’s testimony.
6. The expert should always be willing to reconsider his opinion. This is particularly so if the expert is given new information or has reconsidered the facts in the light of the opinion of the other expert. The expert’s duty is to give independent advice to the court not to support the principal come what may.
This last point raises an interesting question. What is the experts position if he is compelled to change his mind and inform the principal that the case is not, after all, as strong as previously considered? The courts have recognised the difficulty faced by experts. The expert is therefore granted some immunity from liability. That immunity is not, however, absolute and relates to a limited set of circumstances. An expert witness who gives evidence at trial is immune from being sued in respect of anything he says in court. This immunity also extends to the contents of a report he adopts in giving evidence. The claimant cannot get round this immunity by suing on the report rather than the evidence itself. The immunity does not, however, protect an expert who has also been retained to advise on the merits of a party’s claim in litigation even if it was intended that the expert would be a witness at the trial if the litigation proceeded.
The courts have pointed out that the law relating to the extent of an expert witness’s immunity is still in the course of development. The immunity granted to professional experts has been criticized. Until recently English barristers were granted immunity for the work they did representing their clients in court. That immunity has been removed. It is therefore quite possible that the immunity granted to experts will be similarly eroded.
In practice there is an obvious difficulty in separating the work done into the two categories of adviser and expert. One of the issues that has been considered is where, as a result of the meeting of experts, one of them changes his mind. The courts have considered that in these circumstances the duty to the court must override the expert’s fear of being sued for departing from a previously held position. Each case has to be considered on its own facts and there will be grey areas where it is unclear that the expert will be immune from liability.
The potential liability for experts means that the duty should not be undertaken lightly. In any event it is recommended that, before agreeing to act, a potential expert witness checks his professional indemnity insurance to make certain that he would be covered should a claim be forthcoming.
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