The Trouble with Testifying

Times may be tough economically, but there seems to be work aplenty for some consultants in the solid waste industry. Besides the bigger waste companies that often look beyond their in-house staff, many local governments are getting help to launch new projects or to revamp existing programs. In their efforts to attract clients in the solid waste industry, consulting firms typically tout their employees who are skilled at testifying in contested matters.

Serving a client by appearing as an expert witness — whether at a public hearing, deposition or a formal trial — usually triggers premium hourly fees for consultants. These fees, which are — or should be — made known to clients in an engagement agreement, may be double or triple the consultant's “standard” hourly rate, and often apply even when the expert is simply on-call or waiting around for his or her time to testify.

However, some of the bloom is off the rose for expert witnesses. As long as things go smoothly, chances are that expert witnesses can expect to pocket the fees for their time on the case. But, if things go awry or even if the client merely thinks what the expert said or did — or failed to say or do — contributed to a less-than-satisfactory outcome, then not getting paid may be the least of the consultant's worries.

Over the past few years, more and more judges have allowed parties to sue their own expert witnesses for alleged lapses in judgment or outright negligence. In April, the California Supreme Court declined to hear an appeal of a decision allowing a couple to sue an appraiser because of his testimony in a fire insurance arbitration proceeding [Lambert v. Carneghi, 158 Cal.App.4th 1120 (2008)]. Their suit claimed that the expert failed to adequately define the correct standard of replacement cost and, as a result, the award shortchanged them by $1.8 million.

Elsewhere, a federal appeals court ruled that a Utah couple could sue a medical expert they hired to help with a lawsuit they filed when their daughter died after surgery [Pace v. Swerdlow, 519 F.3d 1067 (10th Cir. 2008)]. The suit against the expert, an anesthesiologist, charged breach of contract, malpractice and fraud. Just before the trial, he changed his testimony and conceded that the defendants acted with the appropriate standard of care. The plaintiffs claim his turnabout was fueled by fears of professional ostracism.

A dissenting judge expressed concern for “expert witnesses [who are] forced to defend themselves … 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 … .”

No one is claiming that a litigant should be able to sue merely because an expert comes up with an unfavorable conclusion. The issue is whether experts should be immune from suit when they get a result by going about it the wrong way.