It's Not Brain Surgery

Lawyer Andrew Cohen analyzes legal issues for CBS News and
Have you ever wondered if you could be sued for defamation for what you say in court while testifying under oath as a witness in a case? Wonder no more. Unless you go absolutely bonkers on the stand, and call the defendant a murderer when you are testifying about contract case, you are immune from liability under a privilege that covers "testimony or pleadings in a judicial proceeding." Makes sense, right? After all, it's hard enough to get people to testify without forcing them to worry about getting sued for what they say.

You would think that a brain surgeon would understand all this. But, if you did, you would think wrong. A neurosurgeon named Margaret MacGregor just lost a battle in federal court with another neurosurgeon, a fellow named L. David Rutberg. The latter had testified against the former as an expert witness in a malpractice case against MacGregor. She won that malpractice case and then, apparently unprepared to stay out of court, promptly sued Rutberg, claiming that he had defamed her with his testimony. Lord knows what he said about her but, on Tuesday, the 7th U.S. Circuit Court of Appeals ruled forRutberg and against MacGregor.

Turns out, fabled 7th Circuit Judge Richard Posner declared, that "litigation is costly enough without judges making it more so by throwing open the door to defamation suites against expert witnesses. That would not only tend to turn one case into two or more cases (depending on the number of expert witnesses) but also drive up the cost of expert witnesses fees; expert witnesses would demand as part of their fee for testifying compensation for assuming the risk of being sued because of what they testified to." So the court extended to the area of expert witnesses the old rule that had applied to regular witnesses—no liability unless the testimony is "unarguably irrelevant to the case in which it was given."

The judge is right. Expert witnesses—even ones who aren't brain surgeons-- already command outrageous fees from their clients. There is no reason to make things worse by requiring them to fear secondary lawsuits every time they open their mouths. And it's not like Rutberg got off scot-free for his alleged transgression. As a result of his testimony and conduct during the MacGregor malpractice case, Judge Posner noted, Rutberg indeed was expelled from the American Association of Neurological Surgeons for violating its rules. And the moral of the story? When you say something nasty about someone while under oath in court, make sure it has something to do with why you are there in the first place.