Lawsuit Against Expert Survives Appeal

The Paces, through their lawyer, hired Dr. Swerdlow to testify in a wrongful death case they filed on behalf of their daughter.  Allegedly, Dr. Swerdlow changed his testimony on the eve of trial and caused the court to dismiss their case.

The Paces sued their former expert, alleging that he lied about his credentials, was ill-prepared and changed his testimony because he was concerned that his peers would think badly of him.  They alleged "allege that Defendant committed (1) professional  malpractice, (2) fraud, (3) negligent misrepresentation, (4) breach of fiduciary duty, (5) breach of contract, (6) breach of the implied covenant of good faith and fair dealing, and (7) negligent infliction of emotional distress."  The doctor maintained he changed his opinion because of new information he learned about the case in a deposition taken by the defense. 

The District Court dismissed the case on a causation issue, and the 10th Circuit Court of Appeals reversed in this opinion.  The case has been remanded to determine, inter alia,  whether the expert is entitled to a privilege under Utah law.  The concurring and dissent judge goes into on the non-causation issues and argues that the case should be dismissed on other grounds.  His opinion starts on page 18 of the hyperlinked opinion.  A snippet: "Allowing this claim to march along sends the message to would-be expert witnesses: Be wary – very wary – of changing your mind, even when doing so might be consistent with, or compelled by, the standards of your profession."

The case is Pace v. Swerdlow, 519 F.3d 1067 (10th Cir. March 4, 2008).