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On the Level

July 26, 2001
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Robert W. Foster
Professional surveyors are often called to testify as expert witnesses. They are (or should be) well compensated for their services, which include not only time in court, but time in preparation to deliver testimony. Preparation time is often far in excess of actual time spent on the stand and may include strategizing a case with an attorney as well as the professional’s preparing himself or herself for testimony. Indeed, preparation may include advice given by the expert to the lawyer. The lawyer may later employ the expert’s advise in settling a case, in which instance the witness may never have to take the stand. In short, an expert’s participation may go well beyond actual court testimony given during trial or testimony given in deposition. These are all well-recognized professional services. The question is, to what extent may an expert be held liable if it is shown the expert has failed to meet his or her duty of care?

The January/February issue of Guidelines for Improving Practice, a publication of Victor O. Schinnerer & Co. Inc., included an article titled “Expanding Risk for Expert Witnesses,” in which the witness immunity doctrine was discussed: “Expert witnesses are considered to be amici, or friends of the court—professionals who willingly take time to serve the cause of justice... Because of their special role in the legal system, expert witnesses have heretofore been entitled to absolute immunity from civil liability for anything they said on the witness stand.” The article goes on to point out that witnesses do more than testify. They investigate failure, do research and investigation, provide advice, provide most services outside the courtroom and are seen increasingly as “hired guns rather than as amici.”

Then comes the key statement in the Guidelines article: “Expert witnesses owe their clients certain duties by virtue of their specialized knowledge, skills or training which, when breached, can be grounds for a cause of action by a client who has been damaged.” Schinnerer, of course, is in the professional liability insurance business, has decades of experience working with engineers, architects and surveyors, and is understandably concerned about any expansion of liability affecting its policy holders. In the article, Schinnerer reports the differing actions of courts in several states in dealing with expert witness immunity. The following hypothetical cases are an attempt to translate into the surveyor’s purview the significance of these decisions.

Expert Witness Samples

Let’s say you are appointed by the court to consider a land boundary dispute between two property owners. Both parties in the case agree your opinion will be binding. You investigate the case and conclude that the surveyor for Party A has made a correct determination of the property line and that the line set by the surveyor for Party B should be disregarded. The court rules holding to your conclusion. In the aftermath of the case the surveyor for Party B convinces Party B that you made an error in your determination in that you favored a record description over evidence found. Party B sues you. Your defense is that you should receive judicial immunity since you acted as a court-appointed arbitrator in the case. Schinnerer reports that New Jersey appears to be the only state in which a court has held that even a court-appointed expert is not immune from liability for deviating from the applicable accepted professional standards and makes reference to Levine v. Wiss & Co., 97N.J.242, in which the court stated that the standard of reasonable care used for most professionals was applicable.

In another scenario, imagine a dispute between a contractor and a public agency over the amount of fill required to complete a project. You were hired by the contractor to determine the amount of fill. You make a topographic survey, make calculations and testify accordingly. It is determined later that either your survey was inaccurate or your calculations were incorrect. You are sued for negligence in not meeting your duty of care. You plead immunity as an expert.

A 1989 case in the state of Washington had a different outcome than the one in New Jersey. Schinnerer reports from Bruce v. Byrne v. Stevens & Associates Engineers, Inc., 113 Wash.2d 123: the Washington state supreme court determined that the fact that the engineer had been retained and compensated by the plaintiff, rather than appointed by the court, did not deprive him of witness immunity. The court also held that witness immunity applied not only to the engineer’s testimony, but to any action the engineer took before trial that helped form the basis of his testimony.

The outcome might have been different again in California where, in Mattco Forge, Inc. v. Arthur Young & Co., 5 Cal App. 4th 392, the court said that the witness immunity doctrine was not established to protect a litigant’s own expert, but to protect experts from harassment claims by adverse litigants, according to Schinnerer. In words no witness wants to hear, the court said that applying the privilege “...does not encourage witnesses to testify truthfully; indeed, by shielding a negligent expert witness from liability, it has the opposite effect.”

The Missouri Supreme Court seems to agree with the California appeals court. In Murphy v. A.A. Mathews, 841 S.W. 2d 671, Schinnerer explains that the court held that privately retained professionals who negligently provide litigation-related services should not be covered by witness immunity. That protection, the court said, should only cover defamation suits and retaliatory actions against adverse witnesses.

There are several categories in which an expert might wonder about his or her exposure to liability claims: (1) when she acts as a “friendly witness” appointed by the court, (2) when negligence is claimed by his client for whom he has testified, (3) when she is sued by the other party in a case in which she testified for a litigant, and (4) when he is sued for negligence in preparation of documentation used in litigation. The outcome might depend upon which category applies, and upon the state in which the expert was providing the service. But don’t be too sure of anything. The Schinnerer article concludes, “(f)irms that provide these services should know that while the essential status of the expert witness remains the same, the times—and the risk—may be changing indeed.”

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