Federal Judiciary

It?s Gettin? Hard Out Here for an Expert Witness . . .

By Robert Loblaw

Pace v. Swerdlow, 06-4157 (10^th Cir., Mar. 4, 2008)

. . . When he tryin? to get his money for the rent.

When the Cadillac and gas money?s spent,

You?ll have a whole lot of clients jumpin? ship.

Last week I wrote about an expert witness who got put out of business by the Seventh Circuit for being too partial toward a client. But it could have been worse: He could have been sued by his client for not being partial enough.

That?s what happened to Barry Swerdlow, a doctor who was hired to testify in a medical malpractice case centering on whether the decedent?s doctors breached the standard of care following her breast augmentation surgery. The patient complained that she was having trouble breathing and rated her pain a nine on a scale of one to ten. Despite these complaints, she was sent home, where she died that night.

Enter Dr. Swerdlow, who apparently volunteered to testify on the decedent?s behalf. Mistake number one. He had never served as an expert witness before. Mistake number two. The plaintiffs? lawyers submitted a report that did not fully reflect his opinion. Mistake number three. Dr. Swerdlow was not adequately prepared for his deposition, and he collapsed under pressure from defense counsel. Mistake number four. Because of Dr. Swerdlow?s hemming and hawing, the plaintiffs were unable to establish that the defendants proximately caused the decedent?s death, and they lost on summary judgment.

Most of these mistakes reflect poorly on the plaintiffs? attorneys, but it was Dr. Swerdlow who ended up taking the fall. The plaintiffs sued him for a variety of theories, including fraud, tort, professional malpractice, and breach of contract. In an ironic twist, the district court concluded that the plaintiffs had failed to establish that Dr. Swerdlow proximately caused their injury ? namely, the loss of the case at the summary judgment stage ? so the district court threw out the claims.

On appeal, a divided panel of the Tenth Circuit reverses, explaining that the district court erred in its proximate cause analysis. Although there are a few other reasons why the plaintiffs should probably have their claims tossed out, the majority remands so that the district court can address these issues in the first instance.

Dissenting, Judge Gorsuch argues that remanding just wastes more time and money, since the claims against Dr. Swerdlow are doomed to failure. He writes,

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.

Well put. (Except for the “incenting” part ? is that a word?)

Full post as published by Decision of the Day on March 05, 2008 (boomark / email).