## Facts

- LLMD of Michigan, Inc., doing business as Wintoll Associates Limited Partnership (“Wintoll”), pursued a commercial real-estate purchase that depended on financing agreements with two financing companies.
- After the financing allegedly failed, Wintoll sued the financing companies for breach of contract and sought lost profits tied to the failed venture.
- Wintoll retained Jackson-Cross Company and its chairman, Charles Seymour, as paid expert witnesses to calculate and present lost-profit damages.
- A Jackson-Cross employee performed the underlying calculations and estimated lost profits at about $6 million; Seymour adopted those figures for the expert report and testimony.
- During cross-examination, a major mathematical error in the calculation was exposed, undermining the damages analysis; Seymour could not adequately explain or correct it.
- The trial court in the underlying financing case struck Seymour’s expert testimony in its entirety.
- The next day, Wintoll settled the underlying case for $750,000.
- After the settlement, Jackson-Cross provided a revised damages estimate of roughly $2.7 million.
- Wintoll sued Jackson-Cross for professional malpractice and breach of contract, alleging negligent expert work caused a low settlement; it sought damages measured by the difference between the settlement and the corrected estimate.
- The Superior Court affirmed summary judgment for Jackson-Cross on the ground that witness immunity barred the malpractice claim, prompting discretionary review.

## Issues

1. Whether the common-law doctrine of witness immunity bars a retaining party’s professional-malpractice action against its own expert witness for negligent preparation and presentation of expert opinion testimony.

## Decision

- The Supreme Court of Pennsylvania reversed the Superior Court to the extent it relied on witness immunity and remanded.
- The Court held witness immunity does not bar a professional-malpractice action by the party that retained the expert when the claim rests on negligent performance of the expert’s professional services.
- The Court preserved traditional immunity protecting witnesses from civil suits by adverse parties based on testimony given in judicial proceedings.

## Legal Principles

- Witnesses generally have absolute immunity from civil liability for testimony in judicial proceedings when sued by adverse parties, to prevent intimidation and encourage candid testimony.
- That immunity does not extend to bar a client’s malpractice claim against its retained expert for negligent formulation, preparation, and professional work product undertaken pursuant to the expert’s engagement.
- A retained expert’s relationship with the hiring party is contractual and professional in nature; the expert may owe duties of reasonable care to the client similar to other paid professionals.
- Policy justifications for immunity are weaker where the claimant is the retaining client seeking redress for negligent professional services, rather than an adversary attacking unfavorable testimony.

## Conclusion

The Pennsylvania Supreme Court limited witness immunity by allowing a retaining party to pursue malpractice and related claims against its own expert for negligent preparation of expert opinions, while maintaining immunity against suits by opposing parties arising from in-court testimony.


LLMD of Mich., Inc. v. Jackson-Cross Co., 740 A.2d 186 (Pa. 1999)