Freivogel on Conflicts
 
 
 
 
Expert Witness

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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); Tyco Healthcare Group LP v. Ethicon Endo-Surgery, Inc., Civil No. 3:10cv60(JBA) (D. Conn. Dec. 30, 2011) (only lawyers working with expert disqualified, not entire firm); 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.  Kane v. Chobani, Inc., No 12-CV-02425-LHK (N.D. Cal. Aug. 2, 2013);  IPatt Group, Inc. v. Scotts Miracle-Gro Co., 2013 U.S. Dist. LEXIS 84719 (D. Nev. June 17, 2013) (ex parte E-mails fairly harmless; also delay in raising issue);  Gordon v. Kaleida Health, 2013 U.S. Dist. LEXIS 73334 (W.D.N.Y. May 21, 2013); Hinterberger v. Catholic Health Sys., 2013 U.S. Dist. LEXIS 73143 (W.D.N.Y. May 21, 2013)Hamilton v. Dowson Holding Co., Inc., 2009 U.S. Dist. LEXIS 57715 (D.V.I. July 2, 2009) (investigator -- lawyer 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); Simons v. Freeport Mem. Hosp., 2008 U.S. Dist. LEXIS 98450 (N.D. Ill. Dec. 4, 2008) (expert was disqualified); 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); DeLuca v. State Fish Co., 2013 Cal. App. LEXIS 515 (Cal. App. June 27, 2013); 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); Mid Am. Agri Prods./Horizon, LLC v. Rowlands, 2013 Neb. LEXIS 115 (Neb. July 19, 2013); 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. Ross v. Am. Red Cross, 2014 U.S. App. LEXIS 1827 (6th Cir. Jan. 27, 2014) (plaintiff attempted to use former in-house lawyer of defendant); 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); In re C.R. Bard, Inc., Pelvic Repair Systs. Prod. Liab. Litig., 2014 U.S. Dist. LEXIS 170813 (S.D. W. Va. Dec. 8, 2014) (discussed "bright-line" test vs. "two-step" test); SurfCast, Inc. v. Microsoft Corp., 2013 U.S. Dist. LEXIS 140590 (D. Me. Sept. 30, 2013); Sildack v. Corizon Health, Inc., 2013 U.S. Dist. LEXIS 140013 (E.D. Mich. Sept. 30, 2013); Kane v. Chobani, Inc., No 12-CV-02425-LHK (N.D. Cal. Aug. 2, 2013); Thompson, I.G., L.L.C. v. Edgetech I.G., Inc., 2012 U.S. Dist. LEXIS 126808 (E.D. Mich. Sept. 6, 2012); Oracle Corp. v. Druglogic, Inc., 2012 U.S. Dist. LEXIS 83506 (N.D. Cal. June 15, 2012); Lake Cherokee Hard Drive Tech., LLC v. Bass Computers, Inc., 2012 U.S. Dist. LEXIS 28475 (E.D. Tex. March 5, 2012) (only as to the defendant for whom the expert worked; could continue as to other defendants); Pellerin v. Honeywell Int'l Inc., 2012 U.S. Dist. LEXIS 3781 (S.D. Cal. Jan. 12, 2012) (former employee of other side); Park v. Southeast Service Corp., 2011 U.S. Dist. LEXIS 95084 (D.S.C. Aug. 24, 2011) (expectation of confidentiality and representation “sufficiently substantial); WesternGeco LLC v. Ion Geophysical Corp., 2010 U.S. Dist. LEXIS 54523 (S.D. Tex. June 2, 2010) (followed Koch, above); Excel-Jet, Ltd. v. United States, 2009 U.S. Dist. LEXIS 42044 (D. Col. May 1, 2009); Veazey v. Hubbard, 2008 U.S. Dist. LEXIS 100152 (D. Haw. Dec. 11, 2008) (diving accident expert); Simons v. Freeport Mem. Hosp., 2008 U.S. Dist. LEXIS 98450 (N.D. Ill. Dec. 4, 2008) (lawyer not disqualified); Simons v. Freeport Mem. Hosp., 2008 U.S. Dist. LEXIS 98450 (N.D. Ill. Dec. 4, 2008) 3D Systems, Inc. v. Envisiontec, Inc., 2008 U.S. Dist. LEXIS 77925 (E.D. Mich. Oct. 1, 2008) (disqualified expert had been Director of Research and Development for other side for nine years); Rhodes v. E.I. Du Pont De Nemours & Co., 2008 U.S. Dist. LEXIS 46158 (S.D. W. Va. June 10, 2008) (excellent review of the law of expert disqualification); Liger v. New Orleans Hornets NBA Lim. P’ship, 2008 U.S. Dist. LEXIS 46033 (E.D. La. June 12, 2008); 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); Davis v. Petito, 2011 Md. App. LEXIS 23 (Feb. 28, 2011); 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); United States ex rel Desrosiers v. Thaller, 2016 WL 6441548 (S.D. Fla. Nov. 1, 2016) (qui tam setting); Murray Energy Corp. v. McCarthy, 2016 WL 3390517 (N.D. W. Va.) (former EPA official, to now testify against EPA); C.F.T.C v. Oystacher, 2015 WL 9259899 (N.D. Ill. Dec. 18, 2015) (fact that one side's expert has independent contractor arrangement with the other side's expert is not alone grounds for disqualification); Creagri, Inc. v. Pinnaclife Inc., 2013 U.S. Dist. LEXIS 178534 (N.D. Cal. Dec. 18, 2013); Bray v. Husted, 2013 U.S. Dist. LEXIS 165352 (E.D. Ky. Nov. 21, 2013); Dyson, Inc. v. Bissell Homecare, Inc., 2013 U.S. Dist. LEXIS 83800 (N.D. Ill. June 14, 2013) (advertising air filtration in vacuum cleaners); Gordon v. Kaleida Health, 2013 U.S. Dist. LEXIS 73334 (W.D.N.Y. May 21, 2013); and Hinterberger v. Catholic Health Sys., 2013 U.S. Dist. LEXIS 73143 (W.D.N.Y. May 21, 2013) (both sides used same consulting firm, but for different tasks); High Point Sarl v. Sprint Nextel Corp., 2013 U.S. Dist. LEXIS 17366 (D. Kan. Feb. 8, 2013) (CDMA telephone network technology);  Ziptronix, Inc. v. Omnivision Techs., Inc., 2013 U.S. Dist. LEXIS 5422 (N.D. Cal. Jan. 14, 2013) (only NDA signed; no information passed); In re Dreier LLP, No. 08-15051 (SMB) (S.D.N.Y. Nov. 8, 2012); Eastman Kodak Co. v. Kyocera Corp., 2012 U.S. Dist. LEXIS 132436 (W.D.N.Y Sept. 17, 2012) (this matter involves "digital camera functionality; the earlier matter did not); Life Tech. Corp. v. Biosearch Tech., Inc., 2012 U.S. Dist. LEXIS 63975 (N.D. Cal. May 7, 2012) (two matters involving polymerase chain reaction or PCR; DNA); Demouchette v. Sheriff of Cook County, 2012 U.S. Dist. LEXIS 17762 (N.D. Ill. Feb. 10, 2012); Allstate Ins. Co. v. Electrolux Home Products, Inc., 2012 U.S. Dist. LEXIS 846 (N.D. Ill. Jan. 4, 2012) (expert ordered not to rely on certain confidential documents obtained from prior proceeding); Lyman v. Pfizer, Inc., 2011 U.S. Dist. LEXIS 97611 (D. Vt. Aug. 30, 2011) (both matters on the relationship of the drug metoclopramide to tardive dyskinesia); Yelton v. PHI, Inc.,2011 U.S. Dist. LEXIS 60985 (E.D. La. June 8, 2011) (prior relationship brief; no showing what information involved); In re Androgel Antitrust Lit., 2011 U.S. Dist. LEXIS 53169 (N.D. Ga. May 17, 2011) (other side could not specify what confidences it disclosed to the expert); In re Mentor Corp. Obtape Transobturator Sling Prod. Liab. Litig., 2010 U.S. Dist. LEXIS 32606 (M.D. Ga. April 1, 2010) (former employee of defendant privy to technology could be hired by plaintiffs); Young v. Southern Cal Transport, Inc., 2010 U.S. Dist. LEXIS 22332 (S.D. Miss. March 10, 2010); Miller v. Lenz, 2009 U.S. Dist. LEXIS 92202 (N.D. Ill. Oct. 2, 2009) (DNA vs. absorption-inhibition testing); Weaver v. Mobile Diagnostech, Inc., 2009 U.S. Dist. LEXIS 36277 (W.D. Pa. Apr. 30, 2009) (court rejected playbook test for experts); Bone Care Int'l, LLC v. Pentech Pharmaceuticals, Inc., 2009 U.S. Dist. LEXIS 7098 (N.D. Ill. Feb. 2, 2009) (even though experts were on movant’s side in other cases); Alien Tech. Corp. v. Intermec, Inc., 2008 U.S. Dist. LEXIS 38212 (D.N.D. May 9, 2008) (short, cryptic opinion); 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., 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); Safeguard Storage Properties, L.L.C. v. Donahue Favret Contractors, Inc., 2009 La. App. LEXIS 999 (La. App. May 27, 2009) (unique approach due to civil practice statute); 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); Winzelberg v. 1319 50th St. Realty Corp., 2012 N.Y. Misc. LEXIS 1186 (N.Y. Sup. Ct. March 12, 2012); 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); Arnold v. Wallace, 2012 Va. LEXIS 80 (Va. April 20, 2012) (even though affiliated with expert who was disqualified); 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); Aecon Constr. Grp. Inc. v. The Queen, 2012 TCC 160 (CanLII) (Tax Ct. Can. June 8, 2012).

        Judicial Adviser.  Trustees of Boston U. v. Everlight Elecs. Co., LTD, 2014 U.S. Dist. LEXIS 11214 (D. Mass. Jan. 17, 2014).  Patent infringement case.  Expert had been engaged by the judge in an earlier case to be a “judicial technical adviser” on matters relating to the patent that is the subject of this case.  Defendants retained Expert for this case.  Plaintiff moved to disqualify Expert.  In this opinion the court denied the motion.  The court noted a dearth of precedent on this point, but found that Expert was retained in the earlier case just to advise the court on technical issues and had received no confidences in the process.

        U.S. Home Corp. v. Settlers Crossing, LLC, 2013 U.S. Dist. LEXIS 143233 (D. Md. Oct. 3, 2013).  Expert Co. employs a thousand professionals at locations across the U.S. and around the world.  iStar hired Expert Co. for this lawsuit, which involves Maryland real estate.  iStar's opponent, Home Builder, was simultaneously using Expert Co. on West Coast projects.  Claiming Expert Co. had a conflict of interest, Home Builder served a subpoena on Expert Co. for documents relating to its conflicts policies and relationship with iStar.  The magistrate judge quashed the subpoena, and in this order the district judge affirmed.  Among other things, the court noted that the conflict rules regarding non-lawyer professionals are different from those for lawyers.  The court also noted there was no showing that Expert Co. received any information from Home Builder that would be relevant to this case.

        In Bryans v. Cossette, 2013 U.S. Dist. LEXIS 125094 (D. Conn. Sept. 3, 2013), the court held that being a consultant to a party in a lawsuit does not preclude the consultant from being an expert witness in that matter.

        Irving Paper Limited v. Atofina Chemicals Inc., 2008 CanLII 15903 (Ont. Super. Ct. April 15, 2008).  The court, in not disqualifying an expert witness, held that an expert could possess confidences of the other side, but not privileged material, litigation planning, or strategy.

        CDI Corp. v. GT Solar Inc., 2013 U.S. Dist. LEXIS 57071 (S.D. Tex. April 22, 2013).  This is a suit by Co. A. against Co. B involving a "teaming agreement" and trichlorosilane process technology.  Co. A retained Expert to testify about the meaning and implementation of the agreement.  Expert is the president of Co. C, a competitor of Co. B.  Co. B moved to disqualify Expert.  In this opinion the court denied the motion finding that the passage of time and changing technology rendered the information given to Expert not useful to Co. C in competing with Co. B.  The court took Co. A's word that it will alert Co. B before supplying additional information to Expert.

        For Conflicts Purposes Lawyer Using Expert Does not Represent ExpertIn re Zimmer Knee Implant Prod. Liab. Lit., 2012 U.S. Dist. LEXIS 116406 (N.D. Ill. Aug. 16, 2012).

        Law Review.  Kendall Coffey, Inherent Judicial Authority and the Expert Disqualification Doctrine, 56 FLA. L. REV. 195 (2004).

        In Great Lakes Dredge & Dock Co. v. Harnischfeger Corp., 734 F. Supp. 334 (N.D. Ill. 1990), 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).

        Expert Who Profited from Spoliation Had Conflict of Interest.  Chrysler Realty Co., LLC v. Design Forum Architects, Inc., 2008 U.S. Dist. LEXIS 42721 (E.D. Mich. May 30, 2008).  Car Dealer sued Architect because of an allegedly faulty HVAC system.  Upon becoming aware of the defects, Car Dealer hired Expert to design and install a new system.  Car Dealer did not inform Architect of any problems until after the HVAC system was replaced and scrapped.  Based upon spoliation principles, in this opinion the court dismissed the complaint against Architect.  The court held that Expert could not help Car Dealer as an expert witness because Expert had a conflict of interest, which resulted from the Expert’s having profited from Car Dealer’s precipitous destruction of the original system.

        Inventor Cannot Switch Sides in Infringement Case.  Lifewatch Services Inc. v. Braemer Inc., 2010 U.S. Dist. LEXIS 105088 (N.D. Ill. Sept. 28, 2010).  In this case the plaintiff sued the defendants for patent infringement.  While employed by the plaintiff Inventor assigned to the plaintiff the patent in question.  While with the plaintiff Inventor signed a confidentiality agreement.  Inventor was at the plaintiff for nine years after the patent was granted.  The defendants moved for summary judgment and attached Inventor's declaration in support.  The plaintiff moved to disqualify Inventor.  In this opinion the district judge granted the motion and struck the declaration, including instructing the defendants that they could not consult with Inventor.  The court did say the defendants could depose Inventor and/or call him as a fact witness.

       For Conflicts Purposes Lawyer Using Expert Does not Represent ExpertIn re Zimmer Knee Implant Prod. Liab. Lit., 2012 U.S. Dist. LEXIS 116406 (N.D. Ill. Aug. 16, 2012).

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.

        Ferrell v. Liberty Mut. Grp., Inc., 2014 U.S. Dist. LEXIS 97721 (E.D. Ky. July 18, 2014). This case involves an insurance claim and the value of a house damaged in a fire. Plaintiff hired Expert P to testify about value. Defendant hired Expert D but decided not to use Expert D as a witness. Expert D contacted Plaintiff’s lawyer and told him as much. Expert P, with Plaintiff’s lawyer’s knowledge, contacted Expert D. Eventually Expert D gave Expert P his report. Expert P used some of that information to form his own opinion. Defendant moved to disqualify Expert P and Plaintiff’s lawyer. In this opinion, discussing the “spirit” of FRCP 26(b)(4)(D), the court disqualified Expert P from testifying as to value. The court ordered that Expert P could testify as a fact witness. While the court said Plaintiff’s lawyer should have told Expert P not to obtain Expert D’s report, the court declined to disqualify Plaintiff’s lawyer.

        Jai Ganesh Lodging, Inc. v. David M. Smith, Inc., 2014 Ga. App. LEXIS 555 (Ga. App. July 16, 2014). Party A hired Expert, who investigated a claim with a view to being a witness. When Expert showed up as an expert witness for Party B, Party A moved to disqualify Expert. Because Party B had not complied with Georgia’s version of FRCP 26(b)(4)(D), and because Expert had “switched sides,” the court, affirming the trial court, ordered that Expert could testify as a fact witness, but could not testify as to his opinions.

        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.

        Nissan N. Am., Inc. v. Johnson Elec. N. Am., Inc., 2011 U.S. Dist. LEXIS 51115 (E.D. Mich. May 12, 2011).  Johnson made air conditioning fans for Nissan cars.  Nissan claimed the fans were defective and brought this action against Johnson.  Nissan sold the fans to Visteon, which incorporated them into assemblies, which Visteon sold to Nissan.  Visteon is not a party to this action.  The law firm representing Johnson ("Law Firm") contacted a former engineer for Visteon ("Engineer"), who was knowledgeable about the fans and entered into a consulting agreement.  The agreement, among other things, prohibited Engineer from talking to Nissan or its lawyers and provided for compensation at $250/hour.  When Law Firm sought an order approving retention of Engineer, the magistrate judge found that the agreement violated Michigan's version of MR 3.4, and denied the motion.  Nissan then moved to disqualify Law Firm.  In this opinion the district judge denied the motion, in part because there was no showing that confidential information passed between Engineer and Law Firm.

        Moore v. Getahun, 2014 ONSC 21279 (CanLII) (Ont. Super. Ct. May 1, 2014). In this medical malpractice case Plaintiff’s lawyer’s brother presented medical testimony for Plaintiff. In this opinion the court found the testimony inappropriate, given that relationship, and refused to award costs for the testimony.


         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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