Expert who changed mind claims immunity, but plaintiffs still sue

Can plaintiffs sue their physician expert witness for medical liability if the doctor changes his opinion during pretrial proceedings and their lawsuit is eventually dismissed?

That's the question a U.S. district court will consider.

Thomas and Karol Pace sued anesthesiologist Barry N. Swerdlow, MD, after a Utah court in February 2005, dismissed their lawsuit against a surgery center and the doctors who treated and released their daughter after breast augmentation surgery. She died shortly after her release.

The couple accuses Dr. Swerdlow of malpractice, fraud, negligent misrepresentation, breach of fiduciary duty, breach of contract, breach of the implied covenant of good faith and fair dealing, and negligent infliction of emotional distress.

Their lawsuit, filed in Utah state court, alleges that Dr. Swerdlow's change in position after his deposition in January 2005 was a proximate cause of the state court judge's decision approximately a month later to dismiss their medical liability claim against Stephen Shuput, MD. Dr. Shuput, an anesthesiologist, was the only physician who remained a party in the suit regarding care of their daughter as it approached trial.

In his deposition, Dr. Swerdlow testified that he had not seen the transcript of Dr. Shuput's deposition and acknowledged that it would have been good for him to see it. He declined to comment in his deposition on the ethics of testifying without knowing Dr. Shuput's side of the story. Dr. Swerdlow also said he had never testified at trial and that he was "a relative novice at the whole thing," according to court records.

The two sides differ as to whether the Paces' attorney had provided Dr. Swerdlow with a copy of Dr. Shuput's deposition transcript beforehand. They do not dispute that after his deposition, Dr. Swerdlow requested a copy and he received it, as well as the transcripts from the depositions of two surgical center nurses.

Dr. Swerdlow then amended his deposition to say that he thought Dr. Shuput's care and, specifically, his decision to discharge the Paces' daughter, was within the standard of care.

Liability suit thrown out

During all of this legal wrangling, Dr. Shuput asked the Utah court to dismiss the lawsuit, and the court agreed to hear his request. The Paces were able to obtain a brief continuance but, according to court records, Dr. Swerdlow was unwilling to help them. They withdrew Dr. Swerdlow as their expert witness and motioned the court for permission to designate someone else. These motions were denied, and ultimately the court granted Dr. Shuput's motion to dismiss the case.

In the ruling, the Utah judge stated that one of the reasons the claim was dismissed was that Dr. Swerdlow's deposition testimony and addendum failed to meet the grounds necessary to pursue any medical malpractice claims.

Rather than appeal that decision, the Paces sued Dr. Swerdlow. They alleged that his change of opinion on the eve of trial was the "proximate cause" for the state court to dismiss their medical liability claim against Dr. Shuput.

Because the Paces are from Utah and he is from California, Dr. Swerdlow removed the case to U.S. District Court for the District of Utah, which had jurisdiction because the parties are from different states. The district court in March 2006 ruled in favor of Dr. Swerdlow, who claimed that his modified opinion was not the sole or primary ground, nor the proximate cause, for dismissal of the underlying medical liability case.

The Paces appealed. The appeals court in March 2008 ruled that the lower court erred in concluding that Dr. Swerdlow's change in position was not the proximate cause of the Utah court's dismissal.

The appeals court ruled that Dr. Swerdlow did not "prove to be a strong advocate for [the Paces'] claim" during his deposition because he refused to say "within a reasonable degree of medical probability" that the Paces' daughter would be alive if she had been admitted to a hospital instead of being released. A reasonable degree of medical probability or certainty is the trial term that indicates to the court that the expert believes his opinion to be sound.

The appeals court also ruled that the Paces had alleged enough facts against Dr. Swerdlow that, if proven, would establish that his change of opinion was the proximate cause under Utah law for the liability case's dismissal. As a result, the decision stated, the district court's dismissal was premature.

The appeals court remanded the case to the district court to consider whether witness immunity precludes the Paces from suing Dr. Swerdlow. The district court also will need to determine which, if any, of the seven individual claims should be dismissed.

One judge disagreed with the appeals court. He noted that under U.S. Supreme Court precedent, the Paces had to include in their complaint at least some facts that would allow a jury to "infer both that Dr. Swerdlow's change of opinion was something other than an innocent and professional reassessment of his expert opinion in light of newly considered evidence and that his change in opinion caused their damages." They had not done so, the judge said, because the facts surrounding Dr. Swerdlow's change of opinion could rationally support at least two opposing inferences -- that his behavior was unprofessional and amounts to professional malpractice or that he honestly changed his professional opinion.

In addition, he said, allowing the claim to proceed sends the wrong message to would-be expert witnesses. It indicates that they need to be very wary of changing their mind, even when doing so might be consistent with or compelled by professional standards. He said that is the exact message the Paces wanted to send because their "real beef with Dr. Swerdlow was his failure to deliver the expert opinion he had promised the Paces all along."

Arguing expert witness immunity

Dr. Swerdlow also had asked the district court to dismiss the Paces' lawsuit based on his claim of expert witness immunity -- a request the district court did not consider because it dismissed the lawsuit on other grounds.

Dr. Swerdlow's attorneys said they had asked the district court to rule on that issue or certify it to the Utah Supreme Court for action. The district court must use Utah state law when deciding this case. Because the Utah Supreme Court has not ruled on a case similar to this one, the district court could decide that it doesn't have enough Utah case law on expert witness immunity to review before making a ruling. In that case, it would have to turn to the state high court for a decision on the issue.

Under the doctrine of witness immunity, a plaintiff cannot sue defense witnesses for an adverse judgment under the theory that expert witnesses should be permitted to testify freely without fear of finding themselves liable for their testimony.

The Paces argue that other federal jurisdictions that have addressed this question have refused to allow an exception to bar plaintiff claims against friendly experts. But Dr. Swerdlow is arguing that because the district court must follow state law, it has to look to Utah precedent. He argues that decisions from the Utah Supreme Court, while not directly on point about this case, indicate that the court would give him immunity, thus ending his legal battle.