By Captain Kirk Greiner
Experts frequently consider whether or not they should be covered by professional liability insurance. Most expert witnesses do not carry insurance because they do not perceive a risk of being sued.
The only time in which I faced that problem was when I investigated the cause of the grounding of the tankship ARCO ANCHORAGE for the State of Washington. When being hired, I had laughingly asked if the State would indemnify me from any liability (they wouldn’t).
My findings indicated the pilot was at fault. I later testified at a hearing conducted by the State on his appeal of a $5000 penalty for causing oil to be spilled. Subsequently I learned that the pilot had requested his attorney to file a suit against me for liable and slander. The suit was never filed.
A general immunity exists for statements made in a pleading or during a trial or argument of a case. A recent case examined this immunity as it applied to experts. In Panitz v Behrend, 632 A, 2d 562 (Pa.Super. 1993), a expert sued for unpaid fees. A counter claim was filed for gross negligence and misrepresentation by the expert. The expert had been unable to explain inconsistencies in her testimony and admitted the reasoning upon which she relied was inaccurate.
The court held no liability stating, "An expert witness will not be subject to civil liability because he or she, in the face of conflicting evidence or during rigorous cross examination, is persuaded that some or all of his or her opinion testimony has been inaccurate."
If an expert feels that he would be more comfortable with liability insurance, examine the policy carefully before buying it. Many companies do not furnish the policy for you to read until you have purchased it. Insist on a copy before you pay a premium. In one case, where I was reviewing whether or not I wanted to buy coverage, I reviewed a policy that would insure against suits for statements made in court. No other coverage was included. As you can see, they weren’t offering much if any coverage t defend a frivolous suit.
There are two instances where I can perceive liability: first, if you are given a piece of evidence to evaluate and you lose it and the client’s case is damaged; second, if you fail to appear at trial and the clients case is damaged.
Like most of my colleagues, I still don’t carry professional liability insurance.
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