Caselaw Update – Appellate Court Affirms Absolute Immunity For Expert Witness.

L&G Law Group ‘s Andrea H. Kott, Kevin J. Clancy and Joseph E. Comer won a recent victory in the Appellate Court of Illinois with broad implications and protections for expert witnesses in litigation. Sandler v. Sweet, et al., 2017 IL App (1st) 163313.

The plaintiff in this case was also a plaintiff in a prior lawsuit alleging medical malpractice against a hospital. In the prior case, the plaintiff alleged he suffered a brain injury after a suicide attempt while receiving inpatient psychiatric treatment. The hospital denied any brain injury occurred. In defending that litigation, the hospital retained Dr. Sweet as an expert witness. Dr. Sweet conducted a neuropsychological evaluation of the plaintiff and prepared two written reports of his findings, opining the plaintiff did not suffer a brain injury while at the hospital.

When that case was over, the plaintiff filed this subsequent lawsuit, naming Dr. Sweet and the hospital where he practices as defendants. Plaintiff raised claims for medical negligence, common law fraud, and breach of fiduciary duty. Plaintiff’s theory of the case was that Dr. Sweet failed to correctly diagnose his brain injury, which caused the plaintiff harm because he delayed in seeking treatment in reliance on the findings in Dr. Sweet’s reports. The Circuit Court dismissed the case and the Appellate Court affirmed.

In its opinion, the First District held the plaintiff could not state a claim for medical negligence or breach of fiduciary duty because he had no physician patient relationship with Dr. Sweet, a retained expert for the hospital, plaintiff’s adversary in the underlying litigation. The Appellate Court further held Dr. Sweet was entitled to absolute immunity from any suit based upon statements made in his reports, pursuant to the privilege for statements made in “judicial proceedings.”

Even though Dr. Sweet prepared his reports before any actual in court testimony, and before he was even listed on a disclosure of expert witnesses, the Court held they were still privileged because they were an integral part of the process leading up to the testimony. The “privilege of an expert witness extends not only to his or her testimony, but also to acts and communications which occur in connection with the preparation of that testimony.” Id. In addition, the Court held expert witnesses are entitled to absolute immunity regardless of whether they are retained by a party or appointed by the court. “The basic policy of ensuring frank and objective testimony should prevail regardless of how the witness comes to court.” Id.

This decision helps ensure that experts and other witnesses are free to participate openly in litigation without the threat of facing a future lawsuit based upon their opinions or testimony.

The Appellate Court’s opinion may be found at: