# Bruce v. Byrne-Stevens & Associates Engineers, Inc. > Washington Supreme Court · July 20, 1989 · 113 Wash. 2d 123 URL: https://www.frixlaw.com/law-library/cases/9545777 ## Case - **Full name:** Robert L. Bruce, Et Al, Respondents, v. Byrne-Stevens & Associates Engineers, Inc., Et Al, Petitioners - **Court:** Washington Supreme Court - **Decided:** July 20, 1989 - **Citations:** 113 Wash. 2d 123; 776 P.2d 666; 1989 Wash. LEXIS 92 - **Precedential status:** Published - **Opinion:** Dissent by Pearson - **Judges:** Dore, Pearson - **Cited by:** 72 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9545777 ## How later opinions describe it (automated extraction) - holding that a report prepared before trial by an engineer who had been retained as an expert witness was privileged - rejecting argument that litigation privilege should 13 be limited to defamation claims and citing with approval cases that applied litigation 14 privilege to causes of action for malicious prosecution, intentional infliction of emotional 15 distress, negligence, and others - holding witness 18 immunity extends to allegations of conspiracy to commit perjury - stating that "witness'[s] reliability is ensured by [the] oath, the hazard of cross-examination and the threat of prosecution for perjury" - holding the expert witnesses were protected by witness immunity to ensure expert objectivity ## Opinion text Pearson, J. I dissent. The question in this case is not whether an expert witness is immune from subsequent suit for defamatory statements made in a court of law. That question is well settled. Rather, today we are asked whether a professional's act of malpractice outside the courtroom is somehow immunized by the subsequent articulation of that negligently formed opinion in a judicial proceeding. Neither the law of absolute immunity nor sound public policy dictates the result reached by the majority. I would hold that a client's action for malpractice is not barred by the defense of absolute immunity merely because the professional subsequently publishes his or her opinion in a court of law at the client's request. Accordingly, I would affirm the unanimous decision of the Court of Appeals. The majority properly states the common law rule that a witness is absolutely immune from suit for defamatory statements uttered in a judicial proceeding. McClure v. Stretch, 20 Wn.2d 460 , 147 P.2d 935 (1944); Johnston v. Schlarb, 7 Wn.2d 528 , 110 P.2d 190 , 134 A.L.R. 474 (1941). Unfortunately, with a broad cite to the general rule of immunity for defamation, and with no legal authority for the present proposition, the majority extends the rule to shield otherwise actionable professional malpractice. *139 While this court has never ruled on this issue, other jurisdictions considering the question have not allowed the doctrine of immunity to shield negligent experts. In James v. Brown, 637 S.W.2d 914 (Tex. 1982), the court affirmed the dismissal of a libel action against three doctors who had previously testified against the plaintiff in a competency proceeding. However, the court reversed the dismissal of the plaintiff's cause of action based upon the doctors' acts of malpractice in negligently assessing the plaintiff's mental condition: While the doctors' communications to the court of their diagnoses of Mrs. James' mental condition, regardless of how negligently made, cannot serve as the basis for a defamation action, the diagnoses themselves may be actionable on other grounds. . . . The unavailability of a defamation action does not preclude a plaintiff from pursuing other remedies at law. . . . Mrs. James is not prevented from recovering from the doctors for negligent misdiagnosis-medical malpractice merely because their diagnoses were later communicated to a court in the due course of judicial proceedings. James v. Brown, 637 S.W.2d at 917-18 . In Steck v. Sakowitz, Inc., 659 S.W.2d 91 (Tex. Ct. App. 1983), rev'd on other grounds, 669 S.W.2d 105 (Tex. 1984), while dismissing the plaintiff's libel cause of action, the court permitted the plaintiff to proceed on her claim for tortious interference with her employment relationship, even though that cause of action arose out of the same allegedly libelous publication. In essence, merely because a defamation action is precluded by immunity, the rule does not sweep so broadly as to extinguish all causes of action. Finally, in Levine v. Wiss & Co., 97 N.J. 242 , 478 A.2d 397 (1984), the court held immunity was not available to shield an accountant's malpractice, even though the professional was hired to prepare an appraisal for a judicial proceeding: [Immunity] should not be available to shield from liability for negligence appraisers or other experts performing limited functions, as part of their regular professional responsibilities, in the context of judicial proceedings. . . . To do so would not only stretch beyond social need and utility the policy that encourages arbitration, but would also create an additional *140 legal immunity—a consequence contrary to our prevailing philosophy and practice that strive to provide redress for wrongful injury. Levine v. Wiss & Co., 97 N.J. at 251 ; accord, Annot., Accountant's Malpractice Liability to Client, 92 A.L.R.3d 396 , 409 (1979). The case law cited by the majority simply does not support the extension of immunity to the situation at bench. The Court of Appeals in considering the question properly distinguished Bader v. State, 43 Wn. App. 223 , 716 P.2d 925 (1986). That case was not a malpractice action brought against the party's own expert witness. Rather, a victim, who was not a party to the first action brought suit, not against his own expert but against an expert hired by the court. Accordingly, immunity was appropriate since, as will be discussed, the rigors of cross examination protect against negligently formed opinions except as to the party hiring the expert. Additionally, in Bader there is no privity between the victim and the expert witness. The majority holds that the policies underlying witness immunity for defamation actions apply equally to an expert's act of malpractice. In reality, a distinction must be drawn between defamation and acts of professional malpractice subsequently published in the courtroom. Despite the professed reliance upon the policies underlying immunity, in the end the majority holds that immunity stems merely from taking "part in judicial proceedings." Majority opinion, at 129. A simple analogy demonstrates the invalidity of this holding: There is no question that an attorney's defamatory statement during a judicial proceeding is shielded from subsequent attack under the doctrine of immunity. However, the same attorney remains liable to his or her own client for any acts of malpractice that occur in that very forum. Accordingly, from this day forward under the majority's new rule, professionals, particularly attorneys, are provided with a new defense in malpractice actions. *141 The basis for the majority's extension of the rule of immunity is the claimed desire to promote "full and frank testimony." Majority opinion, at 126. A careful analysis of an expert witness's role reveals that such a rule provides no such impetus. Again, distinctions must be drawn between a lay witness and a party's hired expert. Eyewitnesses, while possessing knowledge essential to the action, possess no professional expertise and have no incentive to testify. Faced with the prospect of civil liability for defamation, an eyewitness's unavailability might severely hamper the fact-finding function of the court. Such is not the case with hired experts. First, an expert does not possess unique knowledge. Accordingly, even if malpractice liability intimidates some experts, others will rise to fill the need. Second, the majority's argument assumes that these professionals are not otherwise subject to liability. In point of fact, it is merely fortuitous whether an expert is hired to prepare his or her opinion for testimony, or merely for purposes of an amicable settlement. Only under the majority's new rule would a different result attach, depending on a circumstance outside the expert's control. Additionally, the majority argues, "the hazard of cross examination and the threat of prosecution for perjury" remove the justification for malpractice liability. Majority opinion, at 126. Such an analysis misses the mark. The threat of perjury and the rigors of cross examination only protect against intentional misstatements and those negligent statements the opponent wishes to expose. Thus, these safeguards, in addition to other considerations, do justify the rule of immunity for eyewitnesses. For eyewitnesses are subject to attack from both sides in those areas where their testimony discredits either party's theory. In addition, when an expert overvalues his client's claim, the opponent of course will attempt to discredit the testimony. However, in an instance where an expert negligently reaches his opinion and undervalues his client's claim, as in this case, if cross examination bears that out, not only has *142 the expert committed malpractice, but arguably the opponent's attorney has as well. In Jarrard v. Seifert, 22 Wn. App. 476, 479 , 591 P.2d 809 (1979), the court stated: The defendants were employed as professional engineers and land surveyors because of their superior knowledge in that field. The plaintiffs were entitled to rely on that superior knowledge and to expect that such professionals would fulfill the duty of reasonable diligence, skill, and ability. Today, the majority holds that such a rule is inapplicable to a negligent engineer who prepared his opinion anticipating its use as testimony at trial. However, in the case at hand, had the engineer merely been hired for the purpose of obtaining a settlement with the tortfeasor, the plaintiff's subsequent malpractice action against the engineer would not be barred. I fail to grasp any basis upon which the majority can rightfully distinguish the two situations. Both the law and common sense do not support such a judicially created rule. I would hold that the doctrine of absolute immunity does not bar the client's action against his or her own expert for a negligently rendered professional opinion that is subsequently published in a judicial proceeding. Accordingly, I dissent. Utter, Brachtenbach, and Dolliver, JJ., concur with Pearson, J. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9545777. Public record. Not legal advice.