The Rationale for Expert Immunity or Liability Exposure in Case Law Since Briscoe: Reasserting Immunity Protection for Friendly Expert Witnesses

Abstract:     
In 1983, the U.S. Supreme Court decision in Briscoe v. LaHue provided a comprehensive analysis of the rationale and bases for witness immunity. Since that decision, courts have wrestled with the extent of immunity for adverse, court-appointed, or “friendly” expert witnesses.

Following Briscoe, the Washington Supreme Court in 1989 first addressed friendly expert immunity in Bruce v. Byrne-Stevens. In the Bruce decision, the court granted an expert immunity to suit by his former client who had hired the expert for litigation support. While six states have addresses friendly expert immunity since Bruce, all refuse to grant immunity to friendly experts.

For several reasons, courts should adopt the Bruce approach and grant immunity from suit for friendly experts. First, the claimant had control over the expert selection, retention, and extent of review. Second, liability inappropriately results in expert self-censorship, either by not agreeing to serve as an expert or by shading of testimony. Third, immunity better serves the judicial interest in finality of dispute resolution. Finally, the reasons for denying immunity in the post-Bruce case law fail to persuade after critical scrutiny.

Courts should reject post-Bruce expert liability exposure, and grant immunity to experts against suits from their former clients.

Number of Pages in PDF File: 48

Keywords: experts, malpractice, liability, science, immunity

Accepted Paper Series