Can expert witnesses change their minds?

Of course. But there's a right way and there's a wrong way.

That was at the heart of this week's appellate decision by the U.S. 10th Circuit Court of Appeals in the case of Pace v. Swerdlow.

The case involved an expert witness anaesthesiologist, Barry N. Swerdlow, who changed his mind on the eve of a trial, contributing to the dismissal of the Paces' wrongful death claim.

The case was brought by Thomas and Karol Pace of Utah, whose daughter died after undergoing breast augmentation surgery. According to the 10th Circuit opinion, anaesthesiologist Barry Swerdlow of California approached the Paces' attorney and offered his services as an expert witness. After being retained, Swerdlow wrote a report stating that in his expert opinion the surgical center and its anaesthesiologist, Dr. Stephen Shuput, were negligent in releasing the Paces' daughter from the hospital despite her complaints of chest pains and trouble breathing.

During subsequent deposition testimony, however, Swerdlow admitted that he had not read the attending anaesthesiologist's deposition before forming an opinion. He explained on the record that he was "a relative novice at this whole thing" and had no experience testifying in court as an expert witness. In questioning Swerdlow, the defense attorney implied that the self-appointed expert might be behaving unethically, in violation of his professional licensure.

It was after that deposition that Swerdlow changed his mind. After reading Shuput's deposition, he wrote an "addendum" stating that there had been no breach of the appropriate standard of care. Without giving any advance warning to the Paces or the attorney who had retained him, he sent the addendum to the opposing attorneys. Not surprisingly, the trial court dismissed the Paces' wrongful death claim, leading to their federal appeal.

The 10th Circuit held that a lower court was wrong to dismiss the Paces' lawsuit against Swerdlow for professional malpractice, fraud, and breach of contract. They remanded the case back to the lower court for further proceedings, including a decision on whether the expert is protected by any doctrine of expert witness immunity. Such statutes, the court noted, vary from state to state.

In an interesting partial dissent, Circuit Judge Gorsuch discussed the dangers of discouraging expert witnesses from changing their minds - so long as the change of opinion is based on honest and professional reasoning rather than pressure from the other side:

"Allowing this claim to march along sends the message to would-be expert witnesses: Be wary - very wary - of changing your mind, even when doing so might be consistent with, or compelled by, the standards of your profession…. In our legal system, 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.

"Parties already exert substantial influence over expert witnesses, often paying them handsomely for their time, and expert witnesses are, unfortunately and all too frequently, already regarded in some quarters as little more than hired guns. When expert witnesses can be forced to defend themselves in federal court … simply for changing their opinions - with no factual allegation to suggest anything other than an honest change in view based on a review of new information - we add fuel to this fire. We make candor an expensive option and risk incenting experts to dissemble rather than change their views in the face of compelling new information. The loser in all this is, of course, the truth-finding function and cause of justice our legal system is designed to serve."

The moral for forensic psychologists: Be sure you have appropriate education, training, and experience before hanging out your shingle as an "expert."

The case is here. For more on the legal doctrine of expert witness immunity, see "Suing your own expert witness: Competing policies, uncertain law," by Charles Patrick Ewing, JD, Ph.D., Monitor on Psychology, January 2001, Vol. 32 No. 1.

Photo credit: Estherase (Creative Commons license). Hat tip to Steven Erickson, JD, Ph.D., for alerting me to this case.

POSTSCRIPT: Additional coverage of this case, in the online edition of the American Medical News dated April 14, 2008, is available here.