Toaspern v. Laduca Law Firm LLP, 154 A.D.3d 1149

Background

Defendants (an attorney and his law firm) retained Toaspern, an accident reconstruction expert, for a motorcycle-products-liability trial arising from Smalley v. Harley-Davidson.
Toaspern intermittently consulted with defendants from 2006–2013 and testified at trial; he acknowledged inspecting a similar motorcycle weeks before trial but did not disclose that inspection in his expert disclosure.
During trial, Toaspern referred to evidence deemed precluded and his undisclosed inspection prompted the court to grant a mistrial; defendants then refused to pay the remaining expert fees.
Toaspern sued to recover his fees; defendants asserted two counterclaims alleging (1) inadequate review/preparation causing inability to answer critical questions and exclusion of evidence, and (2) referring to precluded evidence and failing to disclose the motorcycle inspection.
Toaspern moved to dismiss arguing absolute witness immunity for testimony-based claims; Supreme Court partially dismissed portions of the counterclaims and denied defendants' summary judgment motion.
On appeal, the Third Department held that absolute witness immunity bars claims based solely on the content of prior testimony but does not bar claims (e.g., breach of contract, malpractice, negligence) premised on independent pretrial acts or failures to perform, even if the prior testimony is used as supporting evidence.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether absolute witness privilege bars all claims arising from an expert's prior trial testimony	Toaspern: absolute immunity for testimony shields him from liability for damages arising from his trial testimony	Defendants: witness privilege should not bar claims against a party's own expert for malpractice or breach of contract based on trial-related conduct	Court: Privilege bars claims based solely on testimony content but not claims independent of testimony (e.g., inadequate preparation, breach of contract, malpractice)
Whether testimony may be used as evidence to support independent claims	Toaspern: prior testimony cannot be used to create liability	Defendants: testimony may be evidentiary support for independent claims about pretrial conduct	Court: Testimony can be used as proof to support independent claims, but cannot by itself form the basis of liability
Scope of dismissal of counterclaims	Toaspern: entire counterclaims premised on trial conduct should be dismissed	Defendants: portions alleging pretrial failures are viable	Court: Dismissed only parts based exclusively on testimony; allowed parts alleging pretrial breaches or malpractice to proceed
Standard for separating barred testimony-based claims from viable independent claims	Toaspern: immunity applies broadly to expert witnesses	Defendants: immunity should not extend to contractual or professional duties independent of testimony	Court: Use De Lourdes Torres test — claim survives if it can be made out without relying solely on the testimony; otherwise barred

Key Cases Cited

Pfeiffer v Hoffman, 251 A.D.2d 94 (App. Div. 1998) (witness at judicial proceeding enjoys absolute privilege for material testimony)
Tolisano v Texon, 144 A.D.2d 267 (App. Div. 1988) (privilege protects witnesses and experts from harassment and financial hazard of subsequent litigation)
De Lourdes Torres v Jones, 26 N.Y.3d 742 (N.Y. 2016) (test: claim must be viable independent of the challenged testimony to avoid absolute immunity)
Coggins v Buonora, 776 F.3d 108 (2d Cir. 2015) (articulating standard for when testimony-based immunity applies to related tort claims)
Rehberg v. Paulk, 566 U.S. 356 (U.S. 2012) (discussing scope of witness immunity and its limits)