One question on the minds of Expert Witnesses more than ever is, “Do I need professional liability insurance?” That is not an easy question to answer. Experts have always received immunity from professional malpractice claims, however, there has been a trend toward allowing retaining parties to sue their Expert Witnesses for negligence.
In order to prevail, Plaintiff must prove that the testimony given is not on par with the Expert’s standard and that Plaintiff would have won the case “but for” the Expert’s negligence. This standard is difficult to prove and requires a “trial of the Expert within the actual trial.” If found negligent, the Expert can only be held liable for the actual harm caused to Plaintiff. (Mattco Forge V. Arthur Young & Co.).
According to the A-Z Guide to Expert Witnessing (Babitski, Mangraviti, and Babitski), the following tips will help Experts avoid professional liability.
- Testify Truthfully
- Be Well Prepared, Careful, Competent
- Appear As Agreed
- Maintain E&O Insurance
- Understand the Daubert Test of Admissability of Testimony
- Do Not Destroy, Misplace or Lose Evidence
- Avoid Being “Agreed Upon” Expert To All Parties (Lose Adversarial Immunity)
- Avoid Conflicts of Interest
- Seek Legal Counsel In Drafting Contractual Language In Engagement Letter
- Be Discerning As To Which Attorneys You Work For
With the absence of Expert Witness immunity, we would like to pose the following questions:
1. Should the party hiring the expert be entitled to sue the expert for malpractice?
2. Should the party that the expert testifies against be allowed to sue the expert?
3. Is professional liability insurance something that every Expert should consider?
4. What are the implications of Experts having to carry Professional Liability (E&O) insurance?
This post does not even break the surface of the case law or circumstances under which this topic could arise. It is simply intended to bring about discussion. Please leave a comment to answer the above questions, share any experiences you may have had, or opinions you hold on this subject.