## Facts

- Robert and Sallee Bruce and Mildred Smallwood owned separate lakeside properties on Clear Lake in Pierce County, Washington.
- A neighbor’s excavation allegedly caused soil subsidence on both properties.
- The property owners sued the neighbor and retained Byrne-Stevens & Associates Engineers, Inc., through engineer Patrick Byrne, to estimate the cost to restore lateral soil support and to provide expert testimony.
- At trial, Byrne testified to specific restoration costs, and the property owners obtained a judgment against the neighbor in the exact amounts stated in Byrne’s testimony.
- After judgment, the actual restoration costs were allegedly about double the estimates.
- The property owners sued Byrne and his firm for negligence, alleging the inaccurate estimate and testimony reduced their recovery in the prior litigation.

## Issues

1. Whether an expert witness retained by a party is absolutely immune from a subsequent negligence suit by that party arising from the expert’s testimony in a judicial proceeding.
2. Whether witness immunity, if applicable, also covers the expert’s preparatory analysis and work product that formed the basis of the testimony.

## Decision

- The Washington Supreme Court reversed the Court of Appeals and reinstated the trial court’s dismissal.
- The court held that expert witnesses are absolutely immune from civil liability for testimony given in judicial proceedings.
- The court further held that the immunity extends to preparatory acts and opinions that are inextricably intertwined with the testimony.
- Because the alleged negligence concerned the expert’s litigation-related opinions and the preparation for providing them, the claim was barred by absolute witness immunity.

## Legal Principles

- Witnesses in judicial proceedings are protected by absolute immunity from civil suits based on their testimony.
- Absolute witness immunity applies to expert witnesses, including experts retained and compensated by a party.
- Immunity covers both in-court testimony and litigation-related preparatory work that is inseparable from the testimony’s substance.
- Policy rationales include protecting the truth-seeking function of trials by encouraging candid testimony and avoiding post-trial retaliation through civil litigation.
- The legal system’s internal checks (e.g., cross-examination, impeachment, perjury sanctions, and professional discipline) are the preferred mechanisms for addressing unreliable or improper expert testimony.

## Conclusion

The Washington Supreme Court held that a party-retained expert witness cannot be sued in negligence by the hiring party for allegedly mistaken opinions expressed at trial or for closely connected preparatory work performed for the litigation, because absolute witness immunity bars such claims.


Bruce v. Byrne-Stevens & Assocs. Eng’rs, Inc., 113 Wash. 2d 123, 776 P.2d 666 (1989)