Expert Witnesses Need to Know about the New Risks

By Nowicki, Henry G. | Environmental Health Perspectives, February 2004 | Go to article overview

Expert Witnesses Need to Know about the New Risks


Nowicki, Henry G., Environmental Health Perspectives


Professionals should not enter into providing witness or consulting services without considering their personal liabilities. I would like to provide some recent changes and liability issues for the consideration of expert witnesses and consultants.

Times change, as does the law. Under recent court decisions, an expert witness whose work fails to meet professional standards may find himself/herself being hauled back into court as a defendant in a malpractice claim. If the expert knows of possible personal weaknesses, hiring additional experts to cover these weak areas is a feasible solution.

Historically, witnesses could not be sued for defamation on the basis of their testimony in court. The law granted this immunity to encourage candid testimony, or as one court put it, "to ensure that the path to truth is left as free and unobstructed as possible."

In 1999, however, the Supreme Court of Pennsylvania carved a large exception out of the immunity doctrine for expert witnesses. In the case of LLMD of Michigan, Inc. v. Jackson-Cross Co. (1999), the court held that a client could sue his expert witness for negligence if the expert fails to exercise the care and skill common to his profession in forming his opinions on the client's case.

In 2002, the Supreme Court of Appeals in West Virginia took the issue further in Davis v. Wallace (2002) when it suggested that an expert witness could be sued for negligence not only by his own client but also by the opposing party against whom the expert testifies. Experts need to keep up with their fields of interest in the era of rapid new information. This can be done by reading, attending meetings, and talking with other experts. Publishing articles in peer-reviewed journals can help document and prove expertise to the judge. Keeping good records, which display knowledge through good writing skills, is critical; many decisions are based on written documents. Continuing education courses are available to improve the expert's practice and avoid liability problems. Also, all communications should be carefully edited before they are sent.

Scientists who serve as expert witnesses in federal lawsuits should be prepared to justify their theories and methods used in each case in a Daubert hearing. This is a layman's shorthand reference to the 1993 U.S. Supreme Court decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993). The Daubert case radically altered the rules for expert witnesses in federal court. …

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Expert Witnesses Need to Know about the New Risks
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