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It’s a tough time to be an expert witness. Courts are increasingly ordering such witnesses to disclose financial information or risk having their testimony struck from a case. Also, in recent years, a growing number of courts have permitted parties to sue their own experts for negligent testimony, holding that expert witnesses should not be immune from liability from their own clients. In California, a couple is suing a property-appraisal expert they hired for allegedly failing to adequately estimate the costs to rebuild their home, which was destroyed in a fire. The couple claimed the expert’s estimate was $1.8 million off. The California Supreme Court in April refused to hear an appeal from the expert, who claimed immunity. Lambert v. Carneghi, No. 439931 (San Francisco Co., Calif., Super. Ct.). In Utah, a couple is suing a medical expert they hired in a wrongful death suit for changing his testimony on the eve of trial, which led to the dismissal of the case. In March, the 10th U.S. Circuit Court of Appeals ruled that the lower court erred in dismissing the couple’s suit against the expert. The case has been remanded. Pace v. Swerdlow, 519 F.3d 1067 (10th Cir. March 4, 2008). “The trend in the country is to allow this sort of thing — and people are starting to do it,” said Craig Moody, a San Francisco solo practitioner who represents the plaintiffs in the California fire case. “You shouldn’t be able to sue an expert just because you don’t like his result . . . but you should be able to sue if he’s negligent,” he said. A chilling effect? But Michael K. Johnson in the San Francisco office of Los Angeles-based Lewis Brisbois Bisgaard & Smith, who represented one of two experts sued in the California case, disagreed. “Testimony given under the threat of a suit may be shaded,” said Johnson, who fears the ruling that allowed his client to be sued sets a dangerous precedent. “It could potentially chill an expert’s ability to testify freely out of fear that he or she is going to be sued by the client.” But it’s not about being unhappy with experts — it’s about holding them accountable for their actions, said Ken Ivory of Ivory Law in Sandy, Utah, who is representing the Utah couple suing their medical expert. “Giving them absolute immunity rewards experts for bad conduct,” Ivory said. “You’re paying them to advocate for you, and you’re paying them handsomely. To say that they’re completely immune is ridiculous.” Ivory is representing the parents of a woman who died after undergoing breast-augmentation surgery. The couple claims that the surgical center and anesthesiologist were negligent in releasing their daughter too soon. Among their experts was anesthesiologist Barry Swerdlow, who on the eve of trial changed his testimony, saying there had been no breach of the appropriate standard of care. The couple is suing Swerdlow for breach of contract, malpractice and fraud, alleging that Swerdlow lied about his credentials, was ill-prepared and changed his testimony because he feared professional repercussions. Swerdlow’s lawyer, Michael Skolnick of Kipp and Christian in Salt Lake City, denied the allegations. He said his client changed his testimony because of new information about the case that was provided by the defense during deposition. “We think this is a situation where the attorneys who retained Dr. Swerdlow negligently prepared him, hoping to get him to say what they wanted him to say,” Skolnick said. Skolnick also disagreed with the recent 10th Circuit ruling that gave plaintiffs the right to sue his client over his testimony. “It encourages the perception that experts are nothing more than hired guns,” Skolnick said. “If you make the expert liable to his client, or if his opinion doesn’t turn out like the client wants, that discourages experts from serving.” Circuit Judge Neil M. Gorsuch, in a an opinion partly dissenting, sounded similar concerns, stating that “[w]hen expert witnesses can be forced to defend themselves in federal court . . . simply for changing their opinions — with no factual allegation to suggest anything other than an honest change in view based on a review of new information — we add fuel to this fire.” Meanwhile, the “hired gun” strategy is at the heart of litigation involving the disclosure of financial records by expert witnesses. “Plaintiffs’ lawyers are being more aggressive because, as time has gone on, we’re seeing more and more professional witnesses who make a substantial living at providing expert testimony,” said plaintiffs’ attorney Ronald V. Miller Jr. of The Law Offices of Miller & Zois in Baltimore. Miller said that in most cases judges order the information to be divulged, which often results in the expert bailing out of the case. It’s that tactic — requesting records to scare experts away — that frustrates defense attorney Paul Waggoner of the Law Offices of Paul Waggoner in Anchorage, Alaska, who recently lost a case before the Alaska Supreme Court involving financial data disclosure by an expert. “Look, people aren’t going to be willing to testify if that’s what is required,” Waggoner said of demands for financial records. “Obviously, there are times when [experts] should be required to turn over their tax returns — if they’re being evasive or things like that . . . but that’s not what happened here.” In Waggoner’s case, the Alaska Supreme on March 27 upheld a lower court’s decision to exclude an expert’s testimony in a car accident case because he wouldn’t turn over his tax records. The court held that an expert’s financial records may be discoverable to show bias. Noffke v. Perez, 178 P.3d 1141 (Alaska). “It might have created bad law for the defense,” Waggoner said of the ruling. But not for plaintiffs, countered Michaela Kelley Canterbury of Kelley & Canterbury in Anchorage, who represented the plaintiffs before the state high court. “We have a tool now with this decision to fully explore bias to its fullest,” Canterbury said. “We don’t have to take the expert’s word that he earned $500,000 in 2007. We get to crosscheck them with tax returns.” In 2006, the Pennsylvania Supreme Court ruled that expert witness financial records may be discoverable “to facilitate an inquiry into bias.” Cooper v. Schoffstall, 905 A.2d 482. On the flip side, the Kentucky Supreme Court in 2004 declined to require an expert to produce financial documents without first trying to get the information through less intrusive and costly means. Primm v. Isaac, 127 S.W.3d 630.

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