A woman convicted of poisoning her two children should not pay $8,500 in sanctions for filing a negligence claim against the state's expert witnesses, because the claim was not "frivolous."  Although fact witnesses enjoy absolute immunity as incentive to speak frankly, the court noted that some recent cases say such policy concerns do not apply to expert witnesses, who are hired to testify for a party's benefit.  [National Law Journal] via [Ernie the Attorney]

It's interesting what the national press find newsworthy.  The opinion (Davis v. Wallace) referred to in the article was a per curiam opinion by a closely divided court.  In West Virginia jurisprudence, a per curiam opinion does not announce any new principles of law, and the opinion referred to in the article certainly does not do away with expert witness immunity.  Instead, the Court addressed a very narrow issue: whether the trial judge "abused his discretion by sanctioning a litigant and her attorney for expounding a novel cause of action that is not currently recognized in West Virginia."  

The word "frivolous" is frequently used in the press to describe lawsuits, but in this context it has a very specific meaning.  A lawsuit is frivolous if it cannot be supported by a good faith argument for the application, extension, modification, or reversal of existing law, and attorneys can suffer monetary penalties for filing cases in bad faith. 

The majority opinion cites scholarly articles and opinions from other jurisdictions (including Pennsylvania and Louisiana) that supported the cause of action, and, accordingly, reversed the trial court's imposition of sanctions.  The majority opinion does not address the viability generally of a cause of action against expert witnesses (in fact the case at issue was unsuccessful), but only whether the filing of a complaint itself constitutues an act of bad faith compelling monetary sanctions.

In a dissenting opinion authored by Chief Justice Davis, and joined by Justice Maynard, points out that the majority relies primarily on cases from the civil context, and argues that no meritorious argument can be made to permit a criminal defendant to sue a state's expert.  The dissent argues further that despite the per curiam designation, "the effect of the majority's decision will be sweeping and profound."

(Davis v. Wallace was preceded by lengthy criminal proceedings.  The Court previously affirmed the defendant's convictions for attempt to injure her infant son by poison and first degree murder of her infant daughter in this opinion.)