EXPERT WITNESSES
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(Note: because lawyers serving as experts
create unique problems, lawyers serving as expert witnesses or consultants are
treated in a separate article at this site. To go there, click here.)
Lawyers can
cause problems with expert witnesses or expert consultants in a number of
ways. A lawyer might communicate with an expert who is currently retained
by the other side. That can get the lawyer disqualified. A lawyer
may hire as an expert someone who has previously served as an expert for the
other side. That could get the consultant disqualified. It might
even get the lawyer disqualified. In some cases one party interviews a
consultant but declines to hire that consultant. Then, when the other
party hires the declined consultant, that party creates the possibility that the
consultant, or both the consultant and the hiring lawyer, will be disqualified.
One of the
two foundations for conflict of interest rules is confidentiality (the other is
loyalty). The troublesome expert cases almost always turn on
confidentiality considerations. As a result, courts frequently resolve
these cases by resort to conflict of interest rules or principles.
A common thread that runs through the disqualification cases is the courts'
concern for whether one of the parties will be prejudiced by the disclosure of
confidences to and from the expert.
Following are two groups
of cases: the first involving lawyer disqualifications; the other involving
expert disqualifications. Those groups will be broken into sub-groups:
those cases where disqualification occurred; and those where disqualification
was rejected.
This section will
conclude with a brief discussion of the related issue of whether contact with
the other side's expert is a violation of court rules, and, thereby, a violation
of legal ethics rules.
Lawyer Disqualification
Lawyers Disqualified.
In the following cases lawyers were disqualified for either retaining, or
communicating with, experts currently or formerly associated with the other
side. Godby v. General Motors Corp., 2000 U.S. App. LEXIS 17945 (9th Cir.
2000); Erickson v. Newmar Corp., 87 F.3d 298 (9th Cir. 1996); Grioli v. Delta Int’l. Machinery Corp., 395 F. Supp. 2d 11 (E.D.N.Y. 2005) (plaintiff's expert in products case formerly represented
the defendant manufacturer as a lawyer in the same kind of cases); United States, for the use of Grimm Const. Co., Inc. v. SAE Civil
Construction, Inc., 1996 U.S. Dist. LEXIS 3454 (D. Neb. 1996) (hired former
president of the other side); Cordy v. Sherwin-Williams Co., 156 F.R.D.
575 (D.N.J. 1994); MMR/Wallace Power & Indus., Inc. v. Thames Associates,
764 F. Supp. 712 (D. Conn. 1991); American Protection Ins. Co. v. MGM Grand Hotel-Las Vegas,
Inc., 1986 U.S. Dist. LEXIS 28326 (D. Nev. 1986); Shadow Traffic Network,
v. Superior Court, 29 Cal. Rptr. 2d 693 (Cal. App. 1994); County of Los
Angeles v. Superior Court, 271 Cal. Rptr. 698 (Cal. App. 1990); In re American Home
Products Corp., 985 S.W.2d 68 (Tex. 1998); and In re Relators Bell
Helicopter Textron, Inc., 87 S.W.3d 139 (Tex.
App. 2002). Canada: see Miele
v. Humber River Reg. Hosp., 2007 CanLII 27757 (Ont. Super. Ct. July 13,
2007), leave to appeal to Divisional Court granted, 2007 CanLII 44820
(Super. Ct. of Ont. Oct. 25, 2007).
Va. Op. 1638
(1995) discusses the situation where the other side's expert witness is the
president of a corporation that the law firm represents on other matters.
The opinion says that if the law firm has confidential information about the
corporation and the president that would be relevant to the case at hand, the
law firm cannot stay in the case.
Miller v. Superior
Court, 2006 Cal. App. Unpub. LEXIS 1209 (Cal. App. Feb. 9, 2006).
In this divorce action the court appointed a neutral expert to evaluate
child custody alternatives. The
wife changed lawyers after the expert had spent considerable time on the case.
Her new lawyer shortly after being hired learned of the expert, who was
the new lawyer’s client on other matters.
The husband moved to disqualify the wife’s new lawyer.
The trial judge granted the motion and also dismissed the expert.
The appellate court, in this opinion, reversed, holding that this
situation should be handled as in the case where a lawyer represents a judge. In such cases it is the judge who should recuse herself,
allowing the lawyer to remain in the case.
Lawyers Not
Disqualified. Shandralina
G. v. Homonchuk, 54 Cal. Rptr. 3d 207 (Cal.
App. 2007)
(lengthy
discussion of California cases on presumptions, etc. of information sharing);
1210 Colvin Ave., Inc. v. Tops Markets, L.L.C., 2006 U.S. Dist LEXIS
93689 (W.D.N.Y. Dec. 28, 2006) (but, expert disqualified); Beilowitz
v. General Motors Corp., 226 F. Supp. 2d 565 (D.N.J.
2002); Cramer v. Sabine Transportation Co.,
141 F. Supp. 2d 727 (S.D.
Tex. 2001) (court believed lawyer's version of events; discussion of Texas Rule
4.02(b), which specifically forbids unauthorized contacts with other side's
experts); Proctor & Gamble Co. v Haugen,
183 F.R.D. 571 (D. Utah 1998); English Feedlot, Inc. v. Norden Laboratories, Inc., 833
F. Supp. 1498 (D. Col. 1993); Collins
v. State of California, 18 Cal. Rptr. 3d 112 (Cal. App. 2004);
Toyota Motor Sales, U.S.A., Inc. v.
Superior Court, 54 Cal. Rptr. 2d 22 (Cal. App. 1996); Carnival Corp. v.
Romero, 710 So. 2d 690 (Fla. App. 1998); Cresta
v. Dilorenzo,
812 N.E.2d 289 (Mass. App. 2004); In
re Firestorm, 916 P.2d 411 (Wash. 1996) (Opposing firm waited too
long to bring motion to disqualify.).
Expert Disqualification
Expert Disqualified.
In the following cases, the court ruled that an expert had to be disqualified
because of his or her current or prior affiliation with the other side, having
disclosed information to the other side, or having obtained information from the
other side's expert. Koch Ref. Co. v. Jennifer L. Boudreau MV, 85
F.3d 1178 (5th Cir. 1996); Campbell Industries v. M/V Gemini, 619
F.2d 24 (9th Cir. 1980); Howmedica
Osteonics Corp. v. Zimmer, Inc., 2007 U.S. Dist. LEXIS 92307 (D.N.J. Dec.
17, 2007) (expert on both sides at once; good discussion of the "bright
line" vs. "two factor" theories); Alien Tech.
Corp. v. Intermec, Inc., 2007 U.S. Dist. LEXIS 89635 (D.N.D. Nov. 30, 2007)
(high-ranking former officer of adversary); Astrazeneca
Pharmeceuticals, LP v. Teva Pharmaceuticals USA, Inc., 2007 U.S. Dist. LEXIS
88996 (D.N.J. Dec. 4, 2007) (one expert disqualified, the other not);
American
Empire Surplus Lines Ins. Co. v. Care Centers, Inc., 484 F. Supp. 2d 855
(N.D. Ill. 2007)
(side-switching expert disqualified even though
she had no confidences from first engagement); 1210 Colvin Ave., Inc. v. Tops Markets, L.L.C., 2006 U.S. Dist LEXIS
93689 (W.D.N.Y. Dec. 28, 2006) (but, lawyer not disqualified); Pinal
Creek Group v. Newmont Mining Corp., 312 F. Supp. 2d 1212 (D. Ariz. 2004);
United
States v. Salamanca, 244 F. Supp. 2d 1023 (D.S.D.
2003); Cordy v. Sherwin-Williams Co., 156 F.R.D.
575 (D.N.J. 1994); Sells v. Wamser, 158 F.R.D. 390 (S.D. Ohio 1994) (opposing experts from
the same firm unseemly); W.R.
Grace & Co. v. Gracecare, Inc., 152 F.R.D. 61 (D. Md. 1993); Wang Laboratories, Inc. v. Toshiba Corp., 762 F. Supp. 1246 (E.D. Va.
1991); Marvin Lumber & Cedar Co. v. Norton Co., 113 F.R.D. 588 (D.
Minn. 1986); Miles v. Farrell, 549 F. Supp. 82 (N.D. Ill. 1982); Sowders
v. Lewis, 2007 Ky. LEXIS 271 (Ky. Dec. 20, 2007); Conforti
& Eisele, Inc. v. Div. of Bld'g. and Const., 405 A.2d 487 (N.J. Super.
1979); Mitchell v. Wilmore, 981 P.2d 172 (Colo. 1999); Turner v.
Thiel, 262 Va. 597 (Va. 2001)
Expert Not Disqualified.
Tidemann v. Nadler Golf Car Sales, Inc., 224 F.3d 719
(7th Cir. 2000) (other side's lawyer merely served subpoena on expert to get fact
testimony); Boman & Kemp Rebar,
Inc. v. J.D. Steel Co., Inc., 2008 U.S. Dist. LEXIS 11410 (D. Utah Feb. 14,
2008) (expert did not switch sides; party hiring expert did);
Astrazeneca Pharmeceuticals,
LP v. Teva Pharmaceuticals USA, Inc., 2007 U.S. Dist. LEXIS 88996 (D.N.J.
Dec. 4, 2007) (one expert disqualified, the other not);
Baghdady v. Baghdady,
2007 U.S. Dist. LEXIS 84453 (D. Conn. Nov. 15, 2007); Wright v. United
States, 2007 U.S. Dist. LEXIS 81274 (D. Ariz. Oct. 18, 2007) (alright for
treating doctor and expert witness from same practice group to be on opposite
sides as long as no information changes hands); BP Amoco Chem. Co. v. Flint
Hills Resources, LLC, 500 F. Supp. 2d 957
(N.D. Ill. 2007);
Coates v. Duffer’s Golf
Center, Inc., 2007 U.S. Dist. LEXIS 32362 (D. Mass. May 2, 2007) expert
switched sides, but no showing expert possessed confidences of first client);
Owen v. General Motors Corp.,
2007 U.S. Dist. LEXIS 27152 (W.D. Mo. April 12, 2007) (odd); Atlantic
City Associates, LLC v. Carter & Burgess Consults., Inc., 2007 U.S.
Dist. LEXIS 1185 (D.N.J. Jan. 5, 2007) (relying upon Cherry Hill, below); Casey Industrial, Inc. v. Seaboard Surety Co., 2006 U.S. Dist. LEXIS
74589 (E.D. Va. Oct. 2, 2006) (no showing that confidential information passed);In
re JDS Uniphase Corp. Sec. Lit., 2006 U.S. Dist. LEXIS 75123 (N.D. Cal.
Sept. 29, 2006) (no showing information exchanged); Estate of Mylo Harvey v. Jones, 2006 U.S. Dist. LEXIS 45983 (W.D.
Wash. July 7, 2006); Yngenta Seeds, Inc. v. Monsanto Co., 2004 U.S. Dist. LEXIS 19817 (D.
Del. Sept. 27, 2004); Lacroix v. Bic Corp., 339 F. Supp. 2d 196 (D.
Mass. 2004) (expert had worked for other side, but court held he did
not learn enough to disqualify him in this case); Hewlett-Packard Co. v. EMC Corp.,
330 F. Supp. 2d 1087 (N.D. Cal. 2004); Grant Thornton, LLP v. Federal Deposit Ins. Corp., 297
F. Supp. 2d 880 (S.D. W. Va. 2004) (Plaintiff complained that
defendant's expert had a conflict with another government agency.); Wright
v. Kaye, 593 S.E.2d 307 (Va. 2004)
(fact witness on one side and expert witness on other side acceptable if no
information exchanged); Mays
v. Reassure America Life Ins. Co., 293 F. Supp. 2d 954 (E.D. Ark. 2003);
Rodriguez v. Pataki,
293
F. Supp. 2d 305
(S.D.N.Y.
Sept. 22, 2003) (no showing that earlier work resulted in getting confidential
information useful in new matter); Popular, Inc. v. Popular
Staffing Services Corp., Popular, Inc. v.
Popular Staffing Services, Corp., 239 F. Supp. 2d 150 (D.P.R.
2003); Larson v. Rourick, 284 F. Supp. 2d 1155 (N.D.
Ia. 2002; In
re Malden Mills Industries, Inc., 275 B.R. 670 (D. Mass. 2002); Chamberlain Group, Inc. v. Interlogix, Inc., 2002
U.S. Dist. LEXIS 6998 (N.D. Ill. 2002); Stencel
v. The Fairchild Corp.,
174 F. Supp. 2d 1080 (C.D. Cal. 2000); United
States v. Healthcare Rehab Systems, Inc., 994 F. Supp. 244 (D.N.J. 1997); United States ex. rel.
Cherry Hill Convalescent Center, Inc. v. Healthcare Rehab Systems, Inc., 994 F.Supp. 244 (D.N.J. 1997); In re Ambassador Group, 879 F.
Supp. 237 (E.D.N.Y. 1994); English Feedlot, Inc. v. Norden Laboratories, Inc., 833
F. Supp. 1498 (D. Col. 1993); Palmer v. Ozbek, 144
F.R.D. 66 (D. Md.
1992); Mayer v. Dell, 139 F.R.D. 1 (D.D.C. 1991); Procter & Gamble Co. v.
Haugen, 184 F.R.D. 410 (D. Utah 1999); Great Lakes Dredge & Dock Co.
v. Harnischfeger Corp., 734 F. Supp. 334 (N.D. Ill. 1990); Stanford v. Kuwait Airways Corp., 1989
U.S. Dist. LEXIS 7633 (S.D.N.Y. 1989); Riley v. Dow Chemical Co., 123
F.R.D.
639 (N.D. Cal. 1989); Nikkal Ind.,
Ltd. v. Salton, Inc., 689 F. Supp. 187 (S.D.N.Y. 1988); Paul v. Rawlings
Sporting Goods Co., 123 F.R.D. 271 (S.D. Ohio 1988); Western Digital
Corp. v. Superior Court, 71 Cal. Rptr. 2d 179 (Cal. App. 1998); Nelson v.
McCreary, 694 A.2d 897 (D.C. 1997); Graham v.
Gielchinsky, 599 A.2d 149 (N.J. 1991) (no new trial, but court enunciated
rule that consultants who change sides should not be allowed to testify); Roundpoint
v. V.N.A., Inc., 621 N.Y.S.2d 161 (N.Y. App. 1995); Connors v. Dawgert, 38
Pa. D. & C.4th 367 (Lackawanna County, Common
Pleas 1998): Donovan v. Bowling, 706 A.2d 937 (R.I. 1998); In re American Home
Products Corp., 985 S.W.2d 68 (Tex. 1998); Formosa Plastics Corp. v. Kajima Int’l., Inc., 216 S.W.3d 436
(Tex. App. 2006)
; In re Firestorm 1991, 916
P.2d 411 (Wash. 1996); State of West Virginia v. Clawges, 620 S.E.2d 162 (W. Va. 2005) (witness changed sides, but information obtained
from first client would be discovered in any event); Secura Ins. Co v. Wisconsin Pub. Service Corp.,
457 N.W.2d 549 (Wis. App. 1990).
Law Review.
Kendall Coffey, Inherent
Judicial Authority and the Expert Disqualification Doctrine, 56 FLA. L. REV.
195 (2004)
In Great Lakes experts
on both sides sometimes worked together at the same firm. The court held
that where there was no showing that confidential information about the case at
hand was exchanged, there would be no disqualification. Western Digital
is similar. One side had interviewed persons at an engineering firm but
decided not to hire them. The other side hired different persons
from the same firm. Because the firm created a screen between the two
groups, the court ruled that the experts should not be disqualified.
Joint Expert
Becomes Expert for One Party. White v. Davis, 592
S.E.2d 265 (N.C. App. 2004). The
parties to a divorce action, both doctors, retained a joint expert to value
their practices for purposes of an equitable distribution.
The plaintiff became dissatisfied with the expert and withdrew from the
arrangement. The defendant wanted
to use the expert anyway, and the plaintiff objected.
The court held in this opinion that the parties had intended the expert
to have information from both. Because
the expert would not be using information gathered in confidence from the
plaintiff, the court held that the expert did not have a conflict and could
testify for the defendant.
Expert Firm for
One Party Purchases Expert Firm for other Party. G.M. Harston Construction
Co., Inc. v. City of Chicago, 2004 U.S. Dist. LEXIS 15185 (N.D. Ill. Aug. 5,
2004). Plaintiff retained ACo as its expert.
Defendant retained BCo as its expert.
While this case was underway, ACo purchased the assets of BCo.
Plaintiff offered to enter into a screening arrangement, but the
Defendant refused. Plaintiff then
moved to disqualify Defendant’s expert. The
court denied the motion, noting that Defendant had spent $300,000 on its expert,
while Plaintiff’s relationship with its expert had just begun.
The court said – but did not rule – that Plaintiff would have to get
another expert. The court also
expressed confidence that Defendant’s expert personnel formerly from BCo would
not communicate about this case with the personnel formerly from ACo. But,
in AMERICO v. PricewaterhouseCoopers, LLP, Superior Court of Maricopa
County, Arizona, CIV 2003-011032, March 30, 2004, the court allowed both experts
to continue provided their combined firm erects a screen between them. In Formosa Plastics Corp., USA v. Kajima Int’l., Inc., 2004 Tex. App.
LEXIS 9950 (Tex. App. Nov. 10, 2004), both sides hired experts from different
organizations, but both organizations were controlled by one of the
experts. The court felt they were too close and disqualified that expert
(the other expert had ceased to function in the case).
Contact with Expert as Violation of Court Rules
ABA Op. 93-378
(1993) discusses the ethical ramifications of an ex parte contact
with the other side's expert. It points out that such a contact
could violate Rule 26(b)(4) of the Federal Rules of Civil Procedure or
similar state court rules. The court held that ex parte
contact with the other side's expert was a serious violation of court
procedural rules in the following cases: American Protection Ins. Co.
v. MGM Grand Hotel-Las Vegas, 748 F.2d 1293 (9th Cir. 1984); Campbell
Industries v. M/V Gemini, 619 F.2d 24 (9th Cir. 1980); and Heyde v.
Xtraman, Inc., 404 S.E.2d 607 (Ga. App. 1991). See, too,
Erickson v. Newmar Corp., 87 F.3d 298 (9th Cir. 1996). The ABA Committee
opined that such a violation is also a violation of Model Rule 3.4(c),
which provides:
A lawyer shall not: . . . (c) knowingly disobey an
obligation under the rules of a tribunal except for an open refusal
based on an assertion that no valid obligation exists; . . . .
Ore. Op.
1992-132 (1992) makes the same observation. It said that the
violation would be clear in federal courts because of Rule 26(c)(4).
By violating Rule 26(c)(4), the lawyer would violate Oregon Disciplinary
Rule 7-106(C)(7) (same as ABA Model Code, and the equivalent of Model Rule
3.4(c)). It observed that Oregon state court rules do not have an
equivalent to Rule 26 and that, as a result, ex parte contact with
the other side's expert would not be a violation of state ethics
rules. Regardless of whether such a contact would be unethical, the
cases in the foregoing paragraphs teach that it could result in the
disqualification of the expert or the lawyer making the contact.
Articles. For an
outstanding, and far deeper, discussion of these very issues, see
Richmond, Expert Witness Conflicts and Compensation, 67 Tenn. L.R. 909
(2000). See, too, Murphy, Expert Witnesses at Trial: Where Are
the Ethics, 14 Geo. J. Legal
Ethics 217 (2000); and Lubet, Expert Witnesses: Ethics and
Professionalism, 12 Geo. J. Legal
Ethics 465 (1999). Patterson, Conflicts of Interest in Scientific Expert Testimony, 40
William & Mary L.
Rev. 1313 (1999) has a title that is
a little misleading. It does not deal with the concepts discussed
above. It is concerned with witnesses' biases and believability and the
admissibility of their testimony under Daubert v. Merrell Dow Pharmaceutical,
Inc., 509 U.S. 579 (1993) and its progeny.
Other Expert Witness Cases
Brown v.
Contemporary OB/GYN Associates, 794 A.2d 669 (Md. App. 2002). Lawyer H. Kenneth Armstrong represented a defendant in
this medical malpractice case. The first two trials ended in
mistrials. A Dr. Osborne was a plaintiffs' expert witness. He
testified in the first trial. Before the third trial Armstrong was hired
to defend Dr. Osborne in an unrelated malpractice case in D.C. (the
"Singleton" case) Before the third trial in this case
Armstrong met with Osborne to discuss the Singleton case. At the third
trial in this case Osborne was out of the country and could not
testify. The trial court felt that plaintiffs had not done enough to
ensure Osborne's presence and ordered plaintiffs to make do with Osborne's
testimony from the first trial. Plaintiffs lost the third trial and moved
for a new trial. One of plaintiffs' claims was that Armstrong had a
conflict of interest tainting Osborne. The trial court denied the motion,
and the appellate court affirmed. The court noted that Armstrong did not
represent Osborne when his testimony was given and was not responsible for
Osborne's unavailability at the third trial.
Corning Inc. v.
SRU Biosystems, 2005 U.S. Dist. LEXIS 22699 (D. Del. Oct. 5, 2005).
Patent infringement case. Party
A intended to call a university professor as an expert witness.
Party A employed a scientist, a former student of the professor, who was
working on technology related to the patents in question.
Party A was concerned that Party B might bring up the professor-student
relationship to show that the professor had a conflict of interest and was
biased. Party A moved for an order in
limine preventing Party B from exploiting the relationship.
The court denied the motion stating that Party B could argue that the
relationship was proof the professor was biased.
Ethics
opinions: Ala. Op. RO-01-02 (2001); Mo. Op. 2003-0063 (undated).
Law
Reviews. Douglas
R. Richmond, Expert Witness Conflicts and
Compensation, 67 Tenn. L. Rev.
909 (2000)
.
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