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Practice Tip: Suing Experts in Product Liability Cases
It is not pleasant to contemplate suing an expert hired to testify for your client. Nevertheless, an attorney's cautious and prudent behavior may be enhanced and professional anguish minimized by frank consideration of the unpleasant possibilities.
The pivotal questions, around which numerous subsidiary issues easily cluster, are these:
- If a claim has been thrown out because an expert botched his assignment or because the expert was found unreliable or untrustworthy in key areas, does that open the expert to being sued for professional malpractice, negligence or breach of contract?
- Are the lawyers who retained that expert exposed to direct suit by frustrated clients or third-party claims by experts who are sued by losing litigants?
Variations on these thematic questions can proliferate. What if a plaintiff were forced, because of a court's “gatekeeping” finding of expert unreliability pursuant to Daubert or Frye, to settle a sizeable claim for a fraction of what it was worth? Could the expert who flunked the reliability threshold be sued for the difference between the pittance paid in settlement and the more generous amount that may have been obtained had the expert been allowed to enter the reliability “gate”? Could the lawyer who hired, prepared and presented the expert be implicated in claims based on the expert's failure to pass muster?
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