Fourth Circuit Shields Expert Witnesses from All Civil Liability (Legal Update)
The Fourth Circuit Court of Appeals, the leading regional federal court covering Maryland, held that the witness litigation privilege protects an expert as well as any witness who testifies in a legal proceeding - even if that expert offered before a court or administrative hearing purposefully biased and/or false testimony. See Day v. John Hopkins Health System Corp., 907 F.3d 766 (4th Cir. 2018).
While Maryland common law has not specifically held that the witness privilege applies absolutely, the Maryland Court of Appeals is expanding the witness litigation privilege in the same direction, to ensure the integrity of the Court system by protecting witnesses from lawsuits for money damages.
For more on the Day precedent and Maryland law, see my more detailed article published in the Trial Reporter (Maryland Association of Justice) attached here.
In Day, a Johns Hopkins University "asbestos expert" was accused of basically giving pro-company testimony to defeat black lung claims of coal miners and their families over decades. His testimony, always, and yes always, helped companies defeat these claims for injury compensation. At the same time, this "expert" charged above market rates for his 'slam dunk' testimony.
After the U.S. Department of Labor re-opened his cases and reversed hundreds of the claim denials, he was sued by many families and miners for his role. The Fourth Circuit upheld the federal trial court's dismissal of these lawsuits because, as the trial court held, the expert was shielded from civil lawsuits for money damages by an absolute witness litigation privilege.
The Fourth Circuit reasoned that this trade-off of protecting witnesses, even bad actors such as the above, protects the court process. It shields witnesses from being sued as a result of being called to Court to tell the truth. Meanwhile, noted the Fourth Circuit, the expert remained subject to criminal prosecution, complaints to a licensing board, and to employment consequences. For more on the Day decision and relevant Maryland precedent, see my article.
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