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What happens if my expert witness does a bad job?

November 15th, 2015
On behalf of David Bowling of The Bowling Christiansen Law Firm, A Professional Law Corporation posted in Medical Malpractice on Sunday, November 15, 2015.

Medical malpractice claims frequently raise complex questions of fact as well as questions about the standard of duty that the defendant medical professional may have failed to live up to in causing harm to the patient. Explaining these complicated issues to the jury in the best possible light to the plaintiff’s side is something that plaintiffs and their attorneys will often enlist the aid of one or more expert witnesses to perform.

What should happen, though, if for some reason the expert witness does not undertake the degree of preparation needed to testify effectively as an expert? And worse, what if that lack of preparation had a negative effect on the outcome of the trial, possibly even causing the plaintiff’s damages claims to be denied? Is there anything that can be done on the part of the unsuccessful plaintiff in such a situation?

Although Louisiana courts have long held that witnesses in general cannot be sued later on by the party that used their testimony, under a form of immunity, the Louisiana Supreme Court has held that no such immunity extends to expert witnesses. What this means is that if the lack of preparation of an expert witness can be connected with harm to the party to the lawsuit that hired the expert, it can be possible to file a subsequent against the expert witness for that failure to adequately undertake his responsibilities.

Of course, the best way to avoid having to sue your own medical malpractice expert witness is for your personal injury attorney to thoroughly vet that witness beforehand, and to assist in ensuring that he or she is well-prepared to testify at trial. But if for any reason the expert witness still fails, then if the facts and circumstances warrant it the expert witness may still be accountable to the plaintiff for that failure to adequately perform his or her duties.

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