You won your Daubert challenge, obtained summary judgment and your opponent gave up without an appeal. That is a great outcome, but your client is still upset because without the junk testimony from your opponent’s expert your opponent might never have taken the case or at least would have taken a sensible position in early settlement talks. Instead, thanks to your opponent’s expert, your client had to spend huge sums of money defending the case through summary judgment. Of course, that is just part of the game. But does it have to be?
Recently, in MacGregor v. Rutberg, 478 F.3d 791 (7th Cir. 2007), the Seventh Circuit considered whether expert testimony should be excepted from the absolute privilege generally applicable to witness testimony in judicial proceedings. Note: MacGregor did not recognize such an exception. However, the decision was closer than would be expected and appears to be one of the first cases really examining whether the policies behind the absolute privilege for witness testimony apply with the same force when the witness in question is a paid expert.
MacGregor involved a defamation claim brought by one neurosurgeon against another. Dr. Rutberg, the defendant in MacGregor, had testified as an expert witness in an earlier malpractice suit against Dr. MacGregor. Dr. MacGregor not only won that earlier malpractice suit, she obtained summary judgment. She then sued Dr. Rutberg for defamation. Id. at 791.
However, “Illinois, like other states, recognizes an absolute privilege for statements in testimony or pleadings” in judicial proceedings. Id. at 791. (MacGregor was a diversity case governed by Illinois law). Dr. MacGregor attacked that privilege directly, arguing that an exception should be recognized for paid experts who testify as witnesses. Id. at 791-792.
Though the court ultimately rejected that invitation, Dr. MacGregor’s argument seemingly was well received. After noting that courts have recognized other exceptions to the absolute privilege for witness testimony (such as for testimony that “is unarguably irrelevant to the case in which it was given”) the court carefully examined the public policy behind the privilege. Id. at 791. Specifically, the court observed that “it is true that the privilege is especially designed for the protection and encouragement of disinterested lay witnesses.” Id. at 792. It would be cruel, the court notes, to force lay witnesses by testifying in a judicial proceeding to assume the risk that they later might be sued in a defamation action. Expert witnesses, on the other hand, “could be paid to assume the risk.” Id. at 792. However, Judge Posner, writing for the court, ultimately rejected that as a rationale for excepting experts from the witness testimony privilege reasoning that:
Litigation is costly enough without judges making it more so by throwing open the door to defamation suits against expert witnesses. That would not only tend to turn one case into two or more cases (depending on the number of expert witnesses), but also drive up expert witnesses’ fees; expert witnesses would demand as part of their fee for testifying compensation for assuming the risk of being sued because of what they testified to.
Id. at 792.
Judge Posner also acknowledged that there is pressure to allow defamation suits against expert witnesses “to keep expert testimony honest.” Id. at 792. However, he rejected that as a basis to except experts from the judicial witness privilege reasoning that the pressure to allow defamation suits “has actually diminished in recent years because of enhanced awareness of the potential abuses involved in such testimony.” Id. Citing Rule 702 of the Federal Rules of Evidence Judge Posner explained that he thought the screening of expert testimony by the courts “is a better check on the abuses [of expert testimony] than allowing every unsuccessful lawsuit to be turned into two or more lawsuits as the winner goes after the expert witnesses who testified unsuccessfully against him.” Id. at 792.
However, Judge Posner also implied that given the procedural posture of the case the court was not favorably disposed to Dr. MacGregor’s request to create an exception to the judicial witness privilege. Apparently during oral argument counsel for Dr. MacGregor proposed that the Seventh Circuit certify the question to the Illinois Supreme Court (which has yet to address this question). The Seventh Circuit, however, declined that invitation in part because Dr. MacGregor had brought her suit in federal court originally – as opposed to having the case come to federal court via removal from an Illinois state court. The court commented that it had noted “in previous cases that a person who wants a novel ruling of state law should sue in state court rather than federal court.” Id. at 793. The court also noted that the certification request was belated. Dr. MacGregor did not request certification until oral argument.
Nevertheless, one point that becomes clear when reading MacGregor is that litigants likely can make legitimate, viable arguments for a change in the law with respect to the absolute witness privilege when that privilege is invoked by paid expert witnesses. Indeed, though the Seventh Circuit refused Dr. MacGregor’s request for such a change, the court cited to no other decision in which a state’s highest appellate court had evaluated the relevant public policy considerations behind the application of the absolute privilege to paid expert testimony. Thus, even if the Seventh Circuit correctly predicted how the Illinois Supreme Court would rule on the issue, it appears that the routine application of the absolute witness privilege to the testimony of paid expert witnesses still could be challenged in good faith in a large number of jurisdictions.
Moreover, it is not entirely clear from MacGregor whether the Seventh Circuit even correctly predicted how the Illinois Supreme Court will rule when it ultimately is presented with the question. One of the reasons the court rejected such a carve out to the rule of absolute witness immunity in MacGregor was the court’s perception that Rule 702 had led to increased vigilance by courts to “screen out expert testimony that does not satisfy reasonable standards of scientific accuracy.” Id. at 792. That consideration, though, is of doubtful effect in Illinois, which is a Frye jurisdiction. See In re Commitment of Simons, 821 N.E.2d 1184, 1188 (Ill. 2004).
In addition, the Seventh Circuit’s concern that excepting expert witnesses from the absolute privilege for testimony in judicial proceedings would allow “every unsuccessful lawsuit to be turned into two or more lawsuits as the winner goes after the expert witness who testified unsuccessfully against him” seems exaggerated. Dr. MacGregor did not merely win the underlying malpractice claim against her. She prevailed at summary judgment. Moreover, Dr. MacGregor presumably sued Dr. Rutberg because Dr. MacGregor’s summary judgment win was based in part on a deficiency in Dr. Rutberg’s methodology. (Dr. MacGregor had appealed from the dismissal of her defamation claims, so the Seventh Circuit simply assumed the facts as alleged by Dr. MacGregor were true for purposes of appeal). Yet not every unsuccessful lawsuit fails during summary judgment. Not every unsuccessful lawsuit involves a finding that an expert’s methodology is deficient. Moreover, even when a suit is unsuccessful due to an expert’s deficient methodology, the expert’s opinions still would be privileged so long as they did not imply the existence of untrue facts. See, e.g., Milkovich v. Lorain Journal Co., 497 1, 18-19, 110 S. Ct. 2695, 2705-06 (1990). Thus, a rule excepting expert witnesses from the absolute judicial witness privilege seems unlikely to allow “every unsuccessful lawsuit to be turned into two or more lawsuits as the winner goes after the expert who testified unsuccessfully against him.”
In the end, the reasoning in and tone of MacGregor suggest that some courts in some jurisdictions might be receptive to the invitation that the Seventh Circuit rejected in MacGregor. The keys to such a claim, however, will be to fashion the claim as a direct request for a change in the law governing the absolute privilege for witness testimony – and to have a client who is prepared for the almost certain appeal.
As always, if you have any thoughts, questions, comments or suggestions on this topic or for making this a more useful resource, please feel free to contact me directly.
Sincerely,
Patrick J. Kenny
Editor-in-Chief
DRI Daubert Online
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