Not a common headline: “Doctor Arrested for Perjury in Boone County.” Actually, it’s not a common headline in any county. Apparently, Dr. Melvyn Flye, a St Louis surgeon, testified in a medical malpractice case involving gallbladder surgery performed in 2010. The media noted that Dr. Flye allegedly lied under oath about his own surgical experience, how often he had been sued for malpractice, and the status of his surgical credentials at a St. Louis hospital. He was released on $50,000 bond.

Every week I receive a call from a doctor stating an expert witness lied- and he or she committed perjury.

Expert witnesses are generally immune from civil litigation based on their opinions rendered in court. They cannot be sued for malicious prosecution, abuse of process, or defamation. The reason is simple. In most disputes, there are two sides, and if experts could be sued for their words by the adverse party, there would never be any end to litigation. Because of this, experts can make wild claims on the witness stand with essential civil impunity. For example, they can profess you never received a medical degree; you are a pedophile; or you have been sued 25 times in the past. While each of these claims is factually false, a party cannot find a remedy in civil court against an adverse expert spouting such lies.

That said, if an expert makes factual claims that are demonstrably false, and these fictions are materially relevant to the outcome of a case, action can be taken criminally (alleging perjury). There, the action is propelled by the district attorney. The district attorney would need to be persuaded to take such a case. The bar is high and most such prosecutors take a pass. The few times district attorneys have propelled such cases, they were based on an expert’s credentials – for example, an expert misstating his credentials vis a vis board certification or how many procedures he had performed in the past.

As but one example:

“A Florida surgeon lied about regularly performing coronary bypass surgery while presenting himself as an expert witness in medical malpractice cases, a federal prosecutor said Friday. The doctor denied the accusation. A federal grand jury indicted Dr. Alex Zakharia on perjury, mail fraud and wire fraud charges, Detroit U.S. Attorney Stephen J. Murphy said in a news release. Zakharia, 68, is a cardiovascular surgeon licensed in Florida. Murphy said the doctor lied about his experience to advertise his services as a medical expert in malpractice cases in 2001 to 2003.”

So, preposterous “opinions” are not considered perjury. Fictional factual claims may be actionable as perjury.

It appears Dr. Flye joins the list of “experts’ whose alleged puffery about his background, training, and experience was exposed.