3rd Place – The Expert Institute’s 2015 Legal Blog Post Writing Contest

Alexandra Murdocca is a J.D. candidate at Stetson University College of Law. Alexandra argues for the application of common law witness immunity to experts who specialize in the appraisal and verification of artwork, claiming that these experts are, as a group, unfairly burdened by their vulnerability to lawsuits from disgruntled art owners pursuant to the Federal Lanham Act. Alexandra notes that although legislative changes in some states have begun to address this issue, a more comprehensive and uniform application of witness immunity across the country is needed.

The Doctrine of Witness Immunity – Why It Must Apply to Art Experts in Federal and State Judicial Proceedings

Alexandra Murdocca – Stetson University College of Law

Art experts must be given immunity when testifying as expert witnesses. Immunity will encourage experts in the creative and fine arts to participate in judicial proceedings, and it will shield experts from civil liability for giving good faith testimonial opinions on the authenticity and value of artworks found inadmissible as evidence by trial judges.

I. Expert Witness Immunity

In the United States, expert witnesses have traditionally been given immunity, freeing them from civil liability for opinions given when testifying in litigation. The common law doctrine of witness immunity provides absolute immunity to those who testify. This doctrine was affirmed by the United States Supreme Court in Brisco v. LaHue, 460 U.S. 325 (1983), a case regarding immunity for testifying witnesses in criminal proceedings, and has expanded to include immunity protection for expert witnesses testifying in litigation. See Andrew Jurs, The Rationale for Expert Immunity or Liability Exposure and Case Law Since Briscoe: Reasserting Immunity Protection for Friendly Expert Witnesses, 38 U. Mem. L. Rev. 49 (2007).

a. Federal Law

Rule 702 of the Federal Rules of Evidence states who is permitted to testify as an expert witness. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the U.S. Supreme Court articulated the “reliability” test, a new test for determining if an expert’s testimony is admissible as evidence. The “reliability” test superseded the long-standing “generally accepted” test established in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The “reliability” test is more flexible than the “generally accepted” test and allows the trial judge to assume the role of “gatekeeper” when determining the admissibility of evidence. Because Daubert only addressed scientific testimony, the role of “gatekeeper” was reexamined in Kuhmo Tire Co. v. Carmichael, 526 U.S. 137 (1999). In Kuhmo, the U.S. Supreme Court held that a trial judge’s role as “gatekeeper” when determining admissibility of testimony under the “reliability” test applied to all expert testimony, not only scientific testimony. Accordingly, Rule 702 was amended to reflect the Daubert and Kumho decisions. Thus, an expert may testify in the form of an opinion if: “(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.” See Fed. R. Evid. 702.

b. State Law

However, today, there is a jurisdictional split amongst the states as to whether suits may be filed against friendly expert witnesses for professional malpractice, negligence, or breach of contract. Because the Federal Rules of Evidence, such as Rule 702, regulate how judges determine whether testimony is admissible as evidence in the federal court system, the doctrine of witness immunity is thus adhered to in federal courts. Yet, state court systems are not regulated by the Federal Rules of Evidence. Instead, they adhere to state civil procedure rules, wherein they may not bar all claims against expert testimony by dissatisfied parties. For example, some states allow malpractice claims against expert witnesses; others allow professional negligence claims against court-appointed expert witnesses.

Currently, the only state case enforcing the doctrine of witness immunity was decided by the Supreme Court of Washington in Bruce v. Byrne-Stevens & Associates Engineers, Inc., 113 Wash. 2d 123 (1989). See also Jur, supra; Thomas E. Peisch and Christina M. Licursi, Witness Immunity in the Post-Daubert World, For The Defense (March 2008). Here, the Court held that privately retained expert witnesses are immune from civil liability for their testimony and from the basis of forming the testimony. The holding of this case supports the public policy reasons for providing witness immunity purported by the U.S. Supreme Court in Briscoe: without witness immunity, witnesses may (1) “be reluctant to come forward to testify” and (2), once on the stand, witness “testimony might be distorted by the fear of subsequent liability.” Briscoe, 460 U.S. at 333.

II. Art Experts

Without application of the doctrine of witness immunity to art experts testifying in state courts, judicial proceedings where art experts are needed will seriously impede the judicial process by preventing “full and frank testimony” from the art expert. Art experts are often asked to testify on the authenticity and value of artwork in cases regarding estate distribution, divorce, bankruptcy, tax, auctions or private sales, insurance, and damages. Art experts may be authenticators or appraisers. Because art experts have special knowledge in the creative and fine arts, they are useful in litigation to assist the finder of fact when determining authenticity or value of a disputed artwork.

However, art experts currently fear giving good faith opinions on authenticity of artworks due to a surge in lawsuits by disgruntled art owners who wish to have their pieces authenticated as originals. Authenticators have been sued on claims for negligence, misrepresentation, fraud, and for violating the Federal Lanham Act. See Judith Wallace, Stemming the Tide of Federal Litigation Against Art Experts and Authentication Boards for Opinions About the Authenticity of Art, Spencer’s Art Law Journal (Fall 2012). These lawsuits often cost art authenticators thousands or millions of dollars to defend their opinions, often expending all of the authenticators’ funds and (or) resulting in the dissolution of foundations that serve to provide expert opinions, such as the Andy Warhol Art Authentication Board. Without immunity protection, the U.S. Supreme Court’s fears expressed in Brisco will likely come true: art experts may not willingly testify on an artwork’s authenticity or value, or an art expert may feel pressured to perjure himself by testifying to an opinion that will more likely shield him from a lawsuit alleging the opinion given or the process for developing the opinion was done so negligently or in bad faith.

Further, art authenticators and art appraisers work closely with one another. To appraise art, a primary qualification that must be established is whether the work is authentic. Without experts giving their opinion on authenticity, appraisers will be unable to provide a complete, good faith report regarding the work’s value when testifying in court. Providing incomplete appraisal reports will cause a testifying expert to be professionally negligent and therefore may create a cause of action against the appraiser by a disgruntled litigant.

III. Cassini v. Electrolux

Recently, the U.S. District Court for the Southern District of New York addressed in Oleg Cassini, Inc. v. Electrolux Home Products, Inc., No. 11 Civ. 1237, (S.D.N.Y. April 15, 2014), whether an art expert’s testimony on authenticity and appraisal could be admitted into evidence when calculating damages for artwork and fashion sketches (created by Oleg Cassini) that were destroyed in a fire caused by Electrolux. When determining admissibility of the testimony, the Court analyzed the Daubert factors and Rule 720 of the Federal Rules of Evidence. The Court held that Cassini’s art expert was qualified to testify because of her education and experience in the art field and in appraisal professional services. The comparative market data approach – the methodology used to appraise the damaged work – and the relevance of the appraisal were not challenged by Electrolux and were therefore not discussed in depth by the Court. Rather, the Court analyzed the expert’s methodology for determining the value of the damages – how the appraisal method was applied to the allegedly damaged works – and concluded that it was unreliable because the expert did not provide sufficient information as to how she compared Cassini’s sketches to similar works to determine their monetary value, and because she did not personally view all of the damaged works. She viewed photographs of the damaged works to assess their value. Moreover, the expert could not guarantee authenticity of the works she evaluated, thus causing her testimony to be unreliable and inadmissible as evidence.

Because Cassini was evaluated in a federal court, the expert was protected from civil liability for negligent testimony. However, if this case was evaluated in a state court, the expert’s negligent testimony may have been subject to civil liability. Although the Court in Cassini found the expert’s testimony to be unreliable – and thus inadmissible – if the expert conducted the appraisal and gave the opinion on authenticity in good faith, the expert may have still been liable for testifying to an appraisal conducted negligently if this suit occurred in a state court. If the expert knew Cassini could have sued her for testifying to an expert report conducted negligently, as a result of the Court’s rejection of the admission of her testimony, she may have felt compelled to lie when questioned about how she appraised and evaluated the authenticity of the damaged works. Perjury by a witness to prevent further litigation would be harmful to the credibility of the judicial system, and to the opposing party that did not hire the expert, because its interests in the outcome of the suit are affected by the Court’s admission of an expert witness’s testimony.

Moreover, potential liability for truthful testimony may be most harmful in cases involving disputed artworks. Because authenticators already fear litigation for giving good faith opinions on a work’s authenticity, art experts may be more reluctant to testify if civilly liable, thus giving the finder of fact, who may have no knowledge in the field, the responsibility of determining a work’s authenticity and value. Alternatively, art experts may be more willing to commit perjury if subpoenaed to testify, in order to mitigate the risk of liability for giving a good faith opinion on the work.

IV. Art Expert Litigation Protection

To protect art experts from “nuisance” lawsuits intended to drain experts’ resources, New York State Legislature members have created a bill (S.6794 and A.09016), amending New York’s Arts and Cultural Affairs Law to increase the standard of proof for art owners bringing suit against art experts from a preponderance of the evidence to clear and convincing evidence. The bill also requires an unsuccessful claimant to pay the prevailing party’s legal costs and fees. These changes will hopefully deter the vexatious lawsuits, at least in New York, against art experts. However, both the Senate and the Assembly versions of the bill are pending before the Rules Committee and the Tourism, Parks, Arts, and Sports Development Committee, respectfully, and have yet to be voted upon by the full Senate and Assembly.

Although legislative changes may reduce art experts’ fears of litigation for giving good faith opinions on authenticity and value, the doctrine of witness immunity should be uniformly applied by all of the states in order to encourage art experts to participate in judicial proceedings and to testify truthfully as issues regarding authenticity and value of artworks reach all areas of law.