Here's a news story about a plaintiff's attorney who threw his own expert witness under a metaphorical bus. How? He sued his own witness for changing his testimony when he learned more about the case, concluding the care rendered was NOT negligent.
My reaction? It reminds me of the old joke. What's the definition of mixed emotion? Answer: Your new Porsche going off a cliff with your mother-in-law in the driver's seat. Now, I happen to love my mother-in-law; and I do not own a Porsche, but, she would certainly understand the analogy provided it only applies to other Porsches and other mothers-in-law.
Pace v. Swerdlow, 2008 WL 570805 (10th Cir. 2008). There, the patient underwent a breast augmentation procedure and, although she was having some pain while breathing, she was discharged home. Unfortunately, the patient died. Her family sued. (The actual cause of death was not noted in the appellate record.)
Dr. Swerdlow, acting as an expert, signed an affidavit stating "based upon a reasonable degree of medical certainty, that [defendants] did breach the appropriate standard of care when releasing [the patient] under the circumstances....Given my expertise, training, education, experience, and pursuant to a reasonable degree of medical certainty, it is my opinion that [the patient] should not have been released but should have been monitored overnight. If she had been monitored overnight, it is very likely that she would be alive today."
Swerdlow was later deposed and found the experience unsettling. He was asked if he had read the deposition of the operating surgeon, and honestly answered no. Specifically, the attorney asked if Swerdlow "believe[d] it's consistent with ethical practices [for] expert witness[es] in the guidelines approved by the [his professional society] to testify against an anesthesiologist when you have not asked for his deposition transcript, if there is one, so that you can see his side of the story?"
Swerdlow responded, "I think it would have been good for me to have seen it, and I did not ask for it. I did not think to ask for it. And I wouldn't comment upon the ethics thereof." Swerdlow also admitted that he had "never testified in trial," that he "was not aware that [the surgeon's] deposition had been taken," and that he was "a relative novice at this whole thing."
Swerdlow then did what he believed was eminently reasonable. He asked for the defendant's side of the story; namely the surgeon's deposition. He read it. Then he wrote an addendum addressed to all attorneys stating now that he had read the entire record, he did NOT believe the treatment rendered was below the standard of care. It was clear that such testimony would not serve the plaintiff's mission. So, their team pleaded for more time to find a new witness. A motion for summary judgment was already pending and the judge ruled too late. Case dismissed.
Faced with getting skunked, the plaintiff's attorney tried to salvage a case--any case. How? He sued his own expert witness for changing his story on the "eve of trial." The litany of allegations: Well, supposedly the expert committed (1) professional malpractice, (2) fraud, (3) negligent misrepresentation, (4) breach of fiduciary duty, (5) breach of contract, (6) breach of the implied covenant of good faith and fair dealing, and (7) negligent infliction of emotional distress. That's quite a list. A lower court dismissed the case. But, a 10th Circuit Appellate Court ruled that the plaintiff should be able to plead his case against the expert. So, back to court it goes.
What is troubling is that an expert, faced with new information, is being penalized for giving his honest conclusion. The proper role of the attorney is to be an advocate for his client. The proper role of the expert is to be an advocate for the truth. It would have been better for all parties had the expert gathered all the relevant information to distil his opinion earlier rather than later. That said, I must admit I feel some sympathy for the expert being harshly penalized for his 11th hour conversion. There should be no penalty for an expert amending his opinion to reflect newly disclosed information.
