Case: Pace v. Swerdlow, 519 F.3d 1067 (10th Cir. 2008).
Status: Ready, Aim, Fire
Plaintiffs hired defendant Swerdlow as a medical-malpractice expert in their suit against a physician. Swerdlow signed an affidavit stating that malpractice had caused the death of the Paces' daughter. Shortly before trial, however, Swerdlow learned the other physician's version of events and amended his affidavit. The addendum directly opposed the Paces' claims. When the district court dismissed the Paces' malpractice case, they then sued Swerdlow. The federal district court ruled in favor of Swerdlow, finding that his change of heart was not a proximate cause of the defeat of the Paces' malpractice claims. The 10th Circuit reversed and remanded, finding that the Paces had alleged sufficient facts to survive a motion to dismiss and without addressing the question of expert immunity. A vigorous dissent noted that allowing experts to be sued when they change their mind chills their truth-seeking role in our justice system. As the dissent put it, "demanding that experts ‘deliver' a specified opinion, as opposed to their honest judgment, is supposed to be ethically out-of-bounds-not the basis for a cause of action."
- Always give your expert all the relevant facts of your case. Allowing your expert to be ambushed by the other side can only end in disaster. If your expert is going to have a change of heart, better that it occur with sufficient time to replace her.
- While sound minds may differ in opinions, experts are nonetheless expected to give their honest judgment. If you cannot find an expert to support your claims, you may want to re-examine them.
- If another party's expert appears to have second thoughts, or appears to have been badgered into giving a certain opinion, consider asking that expert under oath whether she is afraid of being sued by her client if she doesn't deliver the opinion it desires.
You need the best experts possible to support your case. You must give them all the facts, solicit their honest opinion and use that to help guide your suit. Too often experts are seen by the public as little more than hired guns to deliver specified opinions. The very least you can do is to make sure they are completely prepared before they are aimed at and fired upon.
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