Professional Negligence Law Reporter

The Eighth Circuit Court of Appeals held that an expert witness who produced a report during a couple’s divorce had absolute witness immunity from civil claims later filed by one of the parties.

During divorce proceedings for Angela and Edward Moody, forensic psychologist James Flens produced an expert report regarding custody of the couple’s minor child. Flens recommended a further evaluation and was deposed about his report. Angela Moody, who was ultimately awarded custody, later sued Flens in state court. The defendant removed the case to federal court and moved successfully for summary judgment.

Affirming, the Eighth Circuit Court of Appeals found that generally, an expert witness has absolute immunity regarding factual statements that are pertinent to the issues being tried. Citing case law, the court added that this immunity extended beyond courtroom testimony to activities such as the production of an expert report and testifying at deposition. Here, the court said, Flens was an expert witness in the regular course of a judicial proceeding. Child custody was a major issue in the Moody divorce, and Flens’s report and suggestion for further evaluation was pertinent to that issue, the court concluded. Therefore, the court held that Flens was entitled to absolute immunity.

Citation: Moody v. Flens, 114 F.4th 964 (8th Cir. 2024).