May the Opposing Expert Be Sued?

The American legal system is adversarial, otherwise I wouldn’t have job. Many cases require expert witnesses to help the fact finder understand the dispute and why one side or the other is correct. Usually clients really do not like what the opposing expert witness says about them. Can the expert witness then be sued?

The Supreme Court of Nevada expressly addressed this question last Thursday in Harrison v. Roitman 131 Nev. Adv. Op. 92 (2015). It arose from a divorce proceeding where Husband hired psychiatrist Norman Roitman to evaluate Wife. Dr. Roitman did not meet or examine Wife, but diagnosed her in a written report as having a personality disorder with a poor prognosis. Wife then sued Dr. Roitman alleging a variety of causes of action, including medical malpractice. The district court granted Dr. Roitman’s motion to dismiss, concluding his statements were protected by Nevada’s near absolute litigation privilege. Wife appealed.

The Supreme Court concluded “party-retained expert witnesses play an integral role in our judicial process.” It described how the judicial process is designed to seek and find truth, hopefully then enabling a peaceful resolution to the conflict between the litigants. If the witnesses, expert or otherwise, are subject to potential liability to others for their testimony, the ability to seek and find truth is impaired. Nevada had previously recognized immunity for court-appointed experts. The Court now evaluated whether that immunity applied to party-retained experts.

“[W]e conclude that the threat faced by party-retained experts is as great as, or greater than, the threat to court-appointed experts, for whom we have previously recognized absolute immunity.” “[T]o grant absolute immunity to court-appointed experts, who might avoid a losing party’s animus by demonstrating objectivity, but to refuse it to party retained experts, who likely face greater animus by association, would be to expose party-retained experts as a lightning rod for harassing litigation.” If immunity did not apply, it would greatly restrict the parties’ ability to find willing witnesses to help explain complex factual issues for a jury. Even then, the witnesses willing to assist might be so exorbitantly priced to offset their risk of liability that the parties could not afford them. “[T]o permit collateral actions against party-retained experts based on statements made during judicial proceedings would be to discourage candid expert opinions and to suppress access. And in so doing, we will have stifled the ascertainment of truth, a result we seek to avoid.”

The Court refused to address one issue, explaining why in its final footnote. “Dr. Rottman also contends that there was no doctor-patient relationship, and thus, he owed no duty of care to Vivian. We conclude that our holding as to absolute immunity is dispositive, and we therefore need not address this issue.” I find it hard to believe a doctor-patient relationship would have existed in that factual context, but I interpret this footnote as a cautious court seeking to avoid its ruling being interpreted beyond its text.