Bruce v. Byrne-Stevens & Assocs
In Bruce v. Byrne-Stevens & Assocs. (1989) 113 Wn.2d 123 776 P.2d 666, a plurality of the Washington Supreme Court held that witness immunity barred a malpractice suit by plaintiffs against an expert they had retained to calculate the costs of corrective work. ... The plurality in Bruce focused on the chilling effect that the threat of subsequent litigation would have on the expert's testimony. ... A loss of objectivity would result because experts would be encouraged to assert the most extreme position favorable to the party for whom they testify.
Moreover, imposition of civil liability on expert witnesses would discourage anyone who is not a professional expert witness from testifying because only professional witnesses will be in a position to carry insurance covering such liability." (Id. at p. 209.)
The Boyes-Bogie court was not persuaded by the first argument, and although the second caused it greater concern, it ultimately disagreed with the Bruce, supra, 776 P.2d 666 conclusion, stating:
"Like other courts which have considered the issue, I do not agree with the reasoning of the plurality in Bruce that the prospect of civil liability ... will discourage frank and objective testimony by experts. First, it ignores the reality that, by definition, expert witnesses retained by a party are not objective witnesses. ... Moreover, the existence of liability will ... encourage experts to be more careful and thorough resulting in more accurate, reliable testimony. ... The second factor relied on by the plurality in Bruce ... is more troublesome. ... Although this issue could presumably be addressed by contract, the prospect of liability may well hamper the ability of the parties to secure the litigation services of an expert who does not derive a significant portion of his income from providing such services." (Id. at pp. 209-210.)