Abstract
The provision of expert testimony in litigation has become a big business. The paradigmatic testifying expert is no longer the “amateur”expert who maintains a separate professional identity and testifies only once, or at most sporadically, in litigation to which their expertise is uniquely pertinent. Rather, they are a professional provider of litigation support services who spends a substantial part of their time, and derives a substantial part of their income from, consulting on pending or contemplated lawsuits. Legal rules concerning the provision of expert testimony continue to apply the former, obsolete paradigm of the testifying expert.
This conflict of paradigms becomes especially acute when a former client accuses a testifying expert of professional malpractice. In other contexts, professional service providers are liable for injuries caused to their client by the service provider’s failure to act with professional competence. In the case of testifying experts, however, some courts and scholars maintain that the absolute immunity extended to participants in judicial proceedings preempts the law of professional malpractice that would otherwise apply.
This Article makes two contributions to the discussion of expert malpractice liability. It is the first Article to construct a typology of expert malpractice claims and to evaluate systematically the rationales offered for absolute immunity of testifying experts as applied to each type of claim.The Article concludes that absolute immunity against expert malpractice claims is in all cases either unwarranted, insofar as it does not serve the purposes of witness immunity, or unnecessary, insofar as existing tort and contract law serve adequately to prevent the undesirable outcomes that proponents of immunity identify while permitting injured plaintiffs to recover for experts’ professional misconduct. Second, the Article offers guidance as to how expert malpractice liability should be implemented, proposing reforms to substantive state law as well as the Federal Rules ofEvidence intended to accommodate the concerns raised by advocates of absolute immunity.
Recommended Citation
James R. Steiner-Dillon, Expert Malpractice, 2024 URL 281 (2024).