Posted On: June 29, 2007 by Karen Olson

Expert Witnesses Can Both Sue and Be Sued

Many expert witnesses do not realize that they can file suit against the law firm that retained the expert if the expert is sued for negligence.

In the 2005 California case of Forensis Group, Inc. v. Frantz, Townsend & Foldenauer, an expert witness was sued for professional negligence for his work in a wrongful death case involving a forklift. The law firm Frantz, Townsend & Foldenauer sued the forklift manufacturer on behalf of the family and retained a mechanical engineering expert witness. At his deposition, the expert did not identify any applicable safety standards, but when the manufacturer later moved for summary judgment, the expert stated in a declaration that the vehicle failed several safety standards. The court granted summary judgment, noting that the expert had contradicted himself. The family filed a malpractice suit against the law firm, and the expert. The expert cross-claimed against the law firm for equitable indemnity, alleging that because he was retained by the law firm, the lawyers should share the loss attributable to the expert's unsuccessful opposition to the motion for summary judgment. The expert charged that the lawyers had not provided him with adequate information, had failed to rehabilitate him at his deposition, and had failed to brief the court on the law regarding the admissibility of evidence regarding industry standards.

The law firm moved for summary judgment, arguing that the expert's indemnity claims were barred by the public policy interest in ensuring the lawyers' undiluted loyalty to their clients, and the trial court granted the motion. On appeal, the Fourth District Appellate Court reversed the trial court, holding that the expert's cross-claim against the law firm could proceed. The appellate court found that since the expert could not independently communicate with the trial court and had to act through the law firm, was not involved in legal strategy, the expert could sue the law firm for equitable indemnity. Furthermore, the court held that since the family had settled its claims against the expert, leaving only the expert's cross-claim for equitable indemnity against the law firm, there was little danger that the lawyers would breach their duty of loyalty or their duty of confidentiality to defend the claim.

It is therefore important to note that expert witnesses are not immune for being sued for their consulting work, and that an expert witness is not barred from seeking indemnity against the law firm that hired the expert.