The Tenth Circuit recently weighed in on the question of expert witness immunity. The majority opinion did not have much to say on the subject, simply remanding the issue to the district court for consideration under Utah law. In a dissent, however, Judge Gorsuch indicated a strong hostility to claims against experts to the extent that they are based on the failure to deliver a specific opinion.

The plaintiffs in Pace filed a medical malpractice action in Utah state court arising from the death of their daughter. They hired Dr. Swerdlow as an expert witness in the case, and he concluded in his expert report that the defendants’ care of the decedent was substandard and had likely caused her death. In his deposition testimony, however, Dr. Swerdlow backed off a bit and admitted that he could not state within a reasonable degree of medical probability that she would not have died but for the defendants’ actions. If that weren’t damaging enough to the plaintiffs’ case, Dr. Swerdlow then drafted and faxed to all of the parties a two-page “addendum” to his deposition completely reversing course and stating that he now considered defendants’ actions to have been within the standard of care. Not surprisingly, the plaintiffs lost the case on summary judgment. There was apparently some suggestion by the plaintiff that Dr. Swerdlow was intimidated into changing his opinion out of concern that the defense counsel would cause problems with his license. Dr. Swerdlow argued that he changed his opinion after reading additional depositions for the first time.

The plaintiffs then sued Dr. Swerdlow for, among other things, professional malpractice. The district court granted a Rule 12(b)(6) motion to dismiss, on the basis that Swerdlow’s initial affidavit was so defective that it would have failed to defeat summary judgment in the underlying action, and therefore that his change of opinion did not damage the plaintiff. The Tenth Circuit reversed in a decision that, technically, was extremely limited. The decision held that the issue of proximate cause was not dispositive, and remanded to the district court to consider, under Utah law, the applicability of expert witness immunity. Judge Gorsuch dissented based on the higher pleading standard set forth by the Supreme Court in last year’s Twombly decision, but he also noted the policy implications of allowing the case to proceed:

Allowing this claim to march along sends the message to would-be expert witnesses: Be wary—very wary— of changing your mind, even when doing so might be consistent with, or compelled by, the standards of your profession. Neither can there be any doubt this is exactly the message plaintiffs wish to send, candidly explaining, as they do, that their real beef with Dr. Swerdlow was his failure to “deliver[] the expert liability opinion he had promised the Paces all along.” … In our legal system, demanding that experts “deliver” a specified opinion, as opposed to their honest judgment, is supposed to be ethically out-of-bounds—not the basis for a cause of action.

Parties already exert substantial influence over expert witnesses, often paying them handsomely for their time, and expert witnesses are, unfortunately and all too frequently, already regarded in some quarters as little more than hired guns. When expert witnesses can be forced to defend themselves in federal court beyond the pleading stage simply for changing their opinions—with no factual allegation to suggest anything other than an honest change in view based on a review of new information—we add fuel to this fire. We make candor an expensive option and risk incenting experts to dissemble rather than change their views in the face of compelling new information. The loser in all this is, of course, the truth-finding function and cause of justice our legal system is designed to serve. Liability for expert witnesses makes perfect sense in some circumstances. For example, in Pollock v. Panjabi, the plaintiff contracted with the defendant to conduct certain experiments designed to show the cause of his neck injury, which he alleged was the result of excessive force used in an arrest. After giving the expert multiple opportunities to correct his work, the court in the underlying action found that the experiments had not been conducted correctly and were not reliable. The court thus refused to admit the experiments as evidence. As the court in the derivative action noted in refusing to grant immunity to the experts: This is not a case in which the right of a witness to speak freely, in or out of court, is involved. While conduct, objects and experiments may have communicative aspects; the plaintiffs do not complain about what … [the experts] said or communicated. Rather, the plaintiffs complain of the defendants’ failure to perform work, as agreed upon, according to scientific principles as to which there are no competing schools of thought.

In other circumstances, witness immunity clearly extends to experts. For example, in Griffin v. Summerlin, the Seventh Circuit, applying Indiana law, held that a non-retained treating physician deposed in a medical malpractice case had absolute immunity to testify in a manner damaging to his patient’s legal claim.

Judge Gorsuch’s comments suggest that the Tenth Circuit will think long and hard before allowing expert witness suits that rest on a theory other than the sort breach of contract/technical incompetence set forth in Pollock. These are, at heart, no different from a legal malpractice action. But, as Judge Gorsuch observes, if one cannot legally or ethically contract with an expert to give a certain opinion (literally buying an expert’s opinion) one ought not to be able to state a claim for the breach of such an agreement as a pleading matter, regardless of the substantive law governing expert witness immunity.

Peter Krumholz is a partner, and Aaron Solomon is an associate, in the Denver law firm of Hale Westfall, LLP. Krumholz is a civil litigator and a former assistant U.S. attorney. Solomon’s practice encompasses both commercial litigation, appellate, and public policy.