This case involves experts in medical malpractice, but it is equally applicable to legal malpractice cases.  May an expert witness (doctor or lawyer) be sued for malpractice based upon expert testimony at a malpractice case?  The answer in Cattani v Marfuggi  ;2009 NY Slip Op 29538 [26 Misc 3d 1053] ; November 25, 2009 ; Friedman, J. ; Supreme Court, New York County  is no.
 

"Plaintiff ignores an overwhelming body of case law, reiterated repeatedly by the appellate courts of this state, that "[s]tatements made by parties, attorneys, and witnesses in the course of a judicial or quasi-judicial proceeding are absolutely privileged, notwithstanding the motive with which they are made, so long as they are material and pertinent to the issue to be resolved in the proceeding." (Sinrod v Stone, 20 AD3d 560, 561 [2d Dept 2005]; Mosesson v Jacob D. Fuchsberg Law Firm, 257 AD2d 381 [1st Dept 1999], lv denied 93 NY2d 808 [1999]; accord Sexter & Warmflash, P.C. v Margrabe, 38 AD3d 163 [1st Dept 2007]; see generally Park Knoll Assoc. v Schmidt, 59 NY2d 205 [1983]; Toker v Pollak, 44 NY2d 211 [1978].) "
 

"This court afforded plaintiff’s counsel, Richard Stone, a reasonable opportunity to avoid this sanctions hearing. On March 19, 2009, at the oral argument of defendant’s motion to dismiss, the court met with counsel for the parties in chambers, expressed its concern that continued maintenance of the action could potentially subject plaintiff to sanctions, and adjourned the oral argument to enable plaintiff’s counsel to consult with other counsel about the legal issues and to confer with his client. On that date, at plaintiff’s counsel’s request, the court also provided him with citations to the immunity cases that are cited in the court’s April 16, 2009 [*4]decision, which was rendered on the adjourned date after plaintiff’s counsel apprised the court that he did not intend to withdraw this action.

Plaintiff has steadfastly insisted that his claims are maintainable. He has ignored the governing case law on witness immunity and has attempted to distinguish the absolute immunity cases on insupportable grounds. Thus, he argues that the immunity cases are all inapplicable because they are progeny of Marsh v Ellsworth (50 NY 309 [1872]), a case involving defamation rather than fraud. (Tr at 16, 19.) At times, plaintiff appears to advance the meritless suggestion that the immunity cases apply only to defamation claims and not to claims involving perjured testimony generally. (Tr at 33.) Focusing on Newin, plaintiff fails to acknowledge that the general rule is that an absolute privilege attaches to witnesses’ testimony in judicial{**26 Misc 3d at 1058} proceedings, and that Newin states an exception, which has been applied only in "rare cases," for perjured testimony that is part of a "larger fraudulent scheme." (Tolisano v Texon, 144 AD2d 267, 271 [1st Dept 1988, Smith, J., dissenting] [citing Newin], revd for reasons stated in dissent 75 NY2d 732 [1989].) As held above, plaintiff’s attempt to bring this case within the Newin exception is completely baseless, and rests on the bare assertion of a larger fraudulent scheme, unsupported by any factual allegations. "