• The Gist: Experts often do not see the transcripts of opposing depos until the last minute — a risky situation.
© 2008 The Medical-Legal News
A Utah couple is suing their own expert witness because they say he backed out of his expected testimony, according to an article in amednews.com, April 14; Pace v. Swerdlow, 519 F.3d 1067 (Utah, 2008).
Thomas and Karol Pace sued Barry Swerdlow, MD, after he allegedly changed his opinion about the cause of the Paces’ daughter’s death from breast augmentation surgery, causing them to lose the case.
The couple has sued Swerdlow for breach of contract, breach of good faith and fair dealing, negligent misrepresentation and several other torts.
According to amednews.com, Swerdlow said he had not seen the deposition of the doctor against whom he was to testify before his own deposition. This fact is in dispute. Swerdlow amended his plaintiff-friendly stance once he saw the deposition, and decided the defendant doctor had been within the standard of care.
The case highlights the hotseat an expert can be in when torn between loyalty to the hiring party and what he feels are professional ethical standards for assessment of a colleague.
The case may wind up at the state’s supreme court. While expert witnesses are given lawsuit immunity from the opposing side, same-side immunity has not been conclusively decided.