Hired Guns, Once Protected By The Witness Immunity Doctrine, Can Become Targets

Courts Allow Malpractice Suits Against Retained Experts in Extreme Cases

This article originally appeared in the Spring 2001 edition of the Civil Litigation Update of the Pennsylvania Bar Association, and the Summer 2001 edition of the American Bar Association Civil Litigation Newsletter.

Egregious errors and pre-trial settlements are among factors causing courts in this country to pare down the centuries-old rule that immunized participants in judicial proceedings from subsequent actions. However, a recent decision by the Third Circuit Court of Appeals, Hughes v. Long, 2001 U.S. App. Lexis 2860 (3d Cir. 2001), predicts the Pennsylvania Supreme Court will raise the drawbridge against further attacks on the rule.

The reasons for the slight relaxation of the witness immunity rule as it applies to experts are compelling. Originally, the rule applied only to testimony given in court. The witnesses were lay persons - farmers, cobblers, laundresses - who had no pretence of special knowledge. The courts simply wanted to create an atmosphere that would encourage witnesses to come forward without fear of later actions. At common law, the immunity contemplated was from libel or slander suits resulting from what was filed with the courts or what was uttered in the courtroom.

The concept of witness immunity, with cases recorded as far back as 1565, grew out of public policy that the judicial process is a truth-seeking function. As such, witnesses should be free to testify without fear of retaliation. Actions for slander for statements made in court simply were not allowed.

The doctrine was first analyzed by the United States Supreme Court in Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108 (1983), a ruling which extended immunity even to perjurers. The Court held that a convicted defendant could not bring a 1983 claim against a police officer who gave perjured testimony at his trial. The Court wanted to prevent retaliatory lawsuits and recognized the difficulty witnesses might have in proving the truth of their earlier testimony. Above all, the court wanted to ensure an atmosphere in which all relevant evidence could be placed before court and jury to enable them to arrive at the truth.Id.

The Pennsylvania courts have long held that statements made by any person involved in a judicial proceeding are immune from subsequent suit. The early decisions grew out of cases alleging libel and slander for opprobrious words uttered in court or stated in pleadings.

For example, in Kemper v. Fort, 219 Pa. 85, 67 A. 991 (1907), the court made an exhaustive study of judicial opinions here and in England on the issue of whether libel and slander could result from statements made in court. All of the authorities, though differing as to when...