CAN A PLAINTIFF SUE AN EXPERT WITNESS FOR ABUSE OF THE TRIAL PROCESS ITSELF?
Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.
Hokanson v. Lichtor, 5 Kan. App. 2d 802, 626 P.2d 214 (1981).
This case addresses the following issue:
Can a plaintiff sue an expert witness for abuse of the trial process itself?
This case dealt with what liability, if any, could attach to a “one-opinion” expert—an expert that consistently and repeatedly testifies favorably for either defendants or plaintiffs—for testifying adversely to an injured plaintiff. Id. at 804. The court ultimately found that Kansas law, like most other jurisdictions, does not recognize any civil liability for perjury by an expert or conspiracy to commit perjury by a defense team. Id. at 806-07. Thus, the court found that it was correct for the trial judge to dismiss Plaintiff’s case for failing to state a claim upon which relief could be granted. Id. at 811.
In this matter, Plaintiff had been involved in a motorcycle-car collision. Id. at 803. The insurer for the other driver was defending against the lawsuit brought by Plaintiff to recover for his injuries. Id. The defense employed a medical expert, Dr. Lichtor, to testify that Plaintiff’s injuries were not very severe and had completely been resolved by treatment. Id. Plaintiff found these statements and the facts relied upon in arriving at these conclusions to be clearly false. Id. This underlying matter was ultimately tried twice, with Dr. Lichtor testifying each time. Id. at 804. Plaintiff did not achieve a good result from either trial. Id. Plaintiff then filed suit against Dr. Lichtor, the defense counsel in the underlying personal injury case, and the insurance company, based upon alleged perjury by Dr. Lichtor and a conspiracy to have Dr. Lichtor commit perjury by the defense team. Id.
The court began by noting that this case boiled down to a simple concept: there are only so many torts (wrongs that you can sue for), and a plaintiff’s facts must fit within one of these known wrongs to survive a motion to dismiss. Id. at 805. Other states that had been presented with similar allegations had declined to recognize liability, including Washington, New York, New Jersey, and others. Id. at 805-06. Relying on these cases, the court found the reasons against allowing such lawsuits was simply too great to overcome. Id. at 806. Most notably, allowing such suits would open up re-litigation of each underlying action, in order to determine if the experts had, in fact, committed perjury. Id. Concerning the conspiracy charge, particularly as it involved the defense attorney and insurance company, the court was very hesitant to allow such actions because of the huge implications of attorney-client privilege. Id. at 807. The court did not want a defense attorney’s litigation strategy put on trial before a jury of non-attorneys, unfamiliar with the complex rules and obligations of professional conduct. Id.
Finally, the court noted the possibility of fixing a tort out of abuse of process or malicious prosecution. Id. at 809-10. However, the key in these types of causes of action is that the defendant was the plaintiff in the prior action. Id. at 810. Basically, a plaintiff cannot initiate a legal action then disagree with how a party chooses to defend that action; any remedies would be available in the underlying action through motions to compel or motions for sanctions. Id.