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);
M&T Bank v. Worldwide Supply LLC, No. 20-6378 (MCA)(MAH) (D.N.J. June 28, 2022);
Grant Heilman Photography, Inc. v. McGraw-Hill Global Educ. Holdings, LLC, 2018 WL 2065060 (E.D. Pa. May 2, 2018) (different result, different plaintiff, but same expert, law firm, and defendant,
Jose Luis Pelaez, Inc. v. McGraw-Hill Global Educ. Holdings LLC,
366 F. Supp. 3d 567 (S.D.N.Y. March 13, 2019));
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. Wilson v. County of San Diego, 2023 WL 8313230 (S.D. Cal. Dec. 1, 2023);
Kashi v. McGraw-Hill Educ. Holdings, 2018 WL 4094958 (E.D. Pa. Aug. 27, 2018)
; 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);
Doe v. Rockingham County School Bd., No. 5:21-cv-00051 (W.D. Va. Harrisonburg Div. Oct. 10, 2023);
Rodriguez v. City of New Brunswick, 2017 WL 5598217 (D.N.J. Nov. 21, 2017) (defendant tried to use plaintiff's treating doctor);
In re Namenda Direct Purchaser Antitrust Litig., 2017 WL 3613663 (S.D.N.Y. Aug. 8, 2017);
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);
Mill Creek Constr., Inc. v. Weldon,
2022 WL 16945002 (Wash. App. Nov. 15, 2022).
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); Federal Ins. Co. v. Eemax, Inc., 2022 WL 4386190 (D. Md. Sept. 22, 2022); Daddono v. Hoffman, 2022 WL 2802695 (M.D. Fla. July 18, 2022) (citing scarcity of "correctional healthcare professionals"); Edwards Vacuum LLC v. Hoffman Instrumentation Supply, Inc., No. 3:20-cv-1681-AC (D. Ore. Dec. 15, 2020) (expert's only relationship was to customer of adverse party); Hess Corp. v. Schlumberger Tech. Corp., 2018 WL 6618068 (S.D. Tex. Dec. 18, 2018) (safety valve engineer had been an employee for other side; close case); FTC v. Innovative Designs, Inc., 2018 WL
1334830 (W.D. Pa. March 15, 2018); Avco Corp. v. Turn & Bank Holdings, Inc., 2017 WL 2224915 (M.D. Pa. May 22, 2017) (earlier case product liability, this case Lanham Act, no showing of confidential information); 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).
Party as Expert. G.W. Aru, LLC v. W.R. Grace & Co.,
No. JKB-22-2636 (D. Md. Aug. 22, 2023). Patent infringement case.
Plaintiff Aru moved for a preliminary injunction and attached a lengthy
declaration of Aru's owner, containing expert opinions. Grace moved to
strike portions of the declaration because it contained "improper and
inadmissible evidence." In this opinion the court denied the motion to
strike. The supposed conflict of interest of the declarant was not an
issue in the motion or the court's order. However, the court mentioned
the conflict in a footnote (No. 1), citing two leading cases in which a
party was an expert witness: Tagatz v. Marquette Univ., 861 F.2d 1040
(7th Cir. 1988) (despite "so obvious a conflict of interest"); and
Patterson v. Santini, 2017 WL 11454838 (D. Colo. Mar. 20, 2017)
(collecting cases).
DiCristoforos v. Fertility Solutions, P.C., 2023 WL 157642
(D.R.I. Jan. 11, 2023). Plaintiffs are a husband and wife suing Clinic
and two doctors ("Doc1" and "Doc2") for an allegedly negligent diagnosis
resulting in the wife's losing a baby and becoming infertile. Clinic
and Doc1 (but, not Doc2) retained an obstetric radiologist for an
analysis and opinion. That expert's husband was also an obstetric
radiologist. We shall call them Expert W and Expert H. Experts W and H
worked at the "same place" and co-authored many learned articles and
books. After receiving Expert W's opinion, the lawyer for Clinic and
Doc1 decided not to proceed further with Expert W. About a year later
the lawyer for Doc2 contacted Expert H about helping in this case.
Expert H said he could not proceed because of his wife's earlier work
for Doc1. About a year after that, the lawyer for the plaintiffs
contacted Expert H about helping the plaintiffs in this case. The lawyer
did not tell Expert H who the parties were. Based upon a "'blind'
review of the ultrasound images" Expert H opined that Doc1 and others
were negligent. When "Defendants" learned that the plaintiffs were using
Expert H as an expert, "Defendants" moved to disqualify Expert H. In
this opinion the court denied the motion. First, Expert H reached his
opinion(s) without knowing who the parties were. Second, based upon the
brief communications between Expert H and the lawyer for Doc2, there
could not have been an expectation of confidentiality by that lawyer.
Third, Expert H had not received information about Defendants that was
not already revealed in filings. [Our note: Something is missing, and
we cannot put our finger on it. Early on, Expert W did substantial work
for the lawyer for Doc 1 and Clinic and rendered an opinion. Although
the lawyer for Doc 1 and Clinic decided not to proceed with Expert W,
what was to keep Expert H from learning Doc1's weaknesses from his wife,
Expert W? If they had been law partners, that information might have
been deemed imputed and caused disqualification.]
Contingent Fee. Wheatridge Office, LLC v. Auto-Owners Ins. Co.,
2022 WL 36137 (D. Col. Jan. 4, 2022). Property Owner is suing InsCo
over a dispute as to the extent of storm damage to Owner's building.
Prior to trial InsCo moved in limine to exclude the testimony of one of
Owner's damages expert. In this opinion the court ruled that the witness
in question could testify as a fact witness but not as an expert. The
expert was to be compensated under a contingent fee agreement, which,
the court held, creates a disqualifying conflict of interest. But, in Healy-Petrik v. State Farm Fire & Cas. Co., 2022 WL 464220 (D. Utah Feb. 15, 2022), the court allowed a contingent fee. It distinguished Wheatridge, because in that case there were other experts available. Not so in Healy-Petrik.
Expert as Owner of Party. Maritech Marine Servs., LLC v. Bay Welding Servs, Inc., 2022 WL
138677 (D. Alaska Jan. 14, 2022). Plaintiff's boat allided (nautical
term) with a dock. Plaintiff sued Defendant for negligently installing a
defective control system in the boat, which caused the allision.
Defendant named its owner as an expert. Plaintiff moved to strike that
expert. In this opinion the court denied the motion without prejudice,
saying that the witness's status as owner of Defendant would be grist
for cross-examination. The court left it for voir dire to determine
whether the witness was otherwise qualified.
Expert as Lawyer's Sister. Ambe v. Air France, S.A., 2021 WL 3511036 (C.D. Cal. Aug. 10,
2021). Airline passenger died in a flight from L.A. to Paris. In this
case the passenger's family is suing the airline for negligence. The
family is relying in part on the declaration and report of Expert, an
M.D. During discovery the family's lawyer attempted to conceal the fact
that Expert is the lawyer's sister. In this opinion the court ruled that
conflict "alone" would warrant Expert's disqualification. (The court
went on the hold that Expert lacked qualifications under FRE 702 to
testify in this case.)
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 Expert.
In 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).
Mere Recommendation of Expert not Disqualifying. Busby v. Harvey, No. 02-16-00311-CV (Tex. App. July 27, 2017).
This is a veterinary malpractice case against Texas Vet involving
treatment of a horse. Although he already had a lawyer, Horse Owner
called Lawyer Chamblee about locating an expert witness. Chamblee
suggested Owner contact Florida Vet, which Owner (or his lawyer) did.
After Owner's conversation with Chamblee, Chamblee was retained by the
malpractice carrier for Texas Vet. According to Chamblee, he did not
detect a conflict because Owner had never been a client and was not in
Chamblee's database. Owner moved to disqualify Chamblee, which, after a
hearing, the trial court denied. In this opinion the appellate court
affirmed. There was some dispute about how much Owner told Chamblee
during their conversation, which the trial court resolved in Chamblee's
favor. Basically, both courts held that Owner did not retain Chamblee
for legal advice and did not disclose important information to Chamblee.
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.
Fake Retention of Disqualify Expert. Tex. Op. 676 (Aug. 2018). Lawyer has already
retained one expert ("No. 1"). He is concerned that the other side will
retain another highly-qualified expert ("No. 2"). So Lawyer arranges a
meeting with No. 2 in order to review the facts and theories of the
case. Once this occurs, No. 2 is probably precluded from being retained
by the other side. But, Lawyer does not follow through with retaining
No. 2. In this opinion the Committee held that Lawyer has violated
Texas' version of Model Rule 4.4(a), and likely has violated Texas
version of Model Rule 4.1(a).
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.
Representing Expert and Party in the Case! A v. B, 2017 QCCA 528 (CanLII) (Que. Ct. App. March 30, 2017). H
and W divorced in 2006. This proceeding is to settle various disputes
about property division and the like. The lower court appointed PwC to
provide expert opinions on these issues. A dispute arose between H and
PwC regarding PwC’s fees. During this appeal W hired Law Firm to
represent her. Law Firm also represented PwC regarding the fee dispute
with H. H moved to disqualify Law Firm. In this opinion the court held
that Law Firm’s representing W and PwC was improper. However, given all
the circumstances, including that no harm seems to have occurred, the
court allowed Law Firm to remain. The court did assess costs against Law
Firm.
Former Lawyer as Expert.
United States v. Lindemuth, 2017 WL 5517947 (D. Kan. Nov. 17,
2017). In this criminal case Defendant sought to add as an expert
witness the bankruptcy lawyer who previously represented Defendant in a
bankruptcy proceeding. The government objected. In this opinion the
court overruled the government, saying that there was nothing about the
expert’s previous conduct, or relationship with Defendant, that was
disqualifying.
For Conflicts Purposes Lawyer Using Expert Does not Represent Expert. In re Zimmer Knee Implant Prod. Liab. Lit., 2012 U.S. Dist. LEXIS 116406 (N.D. Ill. Aug. 16, 2012).
VNO 1105 State Hwy. 36, LLC v. Twp. of Hazlet, 2019 WL 2443430
(Tax Ct. N.J. June 10, 2019). In this opinion the Tax Court judge denied
a motion for rehearing the judge's earlier decision disqualifying
Plaintiff's expert. In this case Plaintiff challenges the assessed
valuation of its property. The Plaintiff's expert is the assessor in a
different municipality. According to the court, allowing his testimony
would create "an appearance of impropriety and impair the integrity of
his public office as assessor."
Youngevity Int'l v. Smith, 2019 WL 2918161 (S.D. Cal. July 5,
2019). In this Lanham Act case Plaintiff moved to exclude expert
testimony of Expert, primarily on Daubert grounds. One basis for
the motion was that Expert was an owner of a related company. In denying
the motion, the court said whether Expert has a conflict "goes to the
weight and credibility" of his testimony, "rather than its
admissibility." [Our note: Almost all expert disqualifications turn
on the expert's current or former relationship with the opposing party.
In those cases admissibility is the test.]
Homeward Residential, Inc. v. Sand Canyon Corp., 2019 WL 5634171
(S.D.N.Y. Oct. 31, 2019). Co. A purchased mortgages from Co. B. In this
case, Co. A sued Co. B for misrepresenting the mortgages. Co. B answered
by claiming any problems Co. A had with the mortgages were Co. A's
fault. Co. B has retained Expert. Expert, based in N.Y., is an employee
of Law Firm, which is based in Florida. While Co. B is paying Law Firm
for Expert's services, Expert is operating independently of Law Firm.
Law Firm's Florida lawyers previously had represented Co. A in an
internal investigation. Co. A has moved to disqualify Expert in this
case. In this opinion the court denied the motion. Expert did not work
on the internal investigation. While Expert theoretically had access to
Co. A's file at Law Firm, the parties satisfied the court that Expert
has not accessed that file.
Need for Expert in Malpractice Case. Mittelstaedt v. Henney, 954 N.W.2d 852 (Minn. App. Jan. 4, 2021).
Plaintiff Mittelstaedt and Defendant Prosser had several business
relationships. Complicating things, Lawyer Henney, primarily Prosser's
lawyer, had several business relationships with Mittelstaedt and
Prosser, and, arguably, represented Mittelstaedt on occasion. The
businesses struggled, and Mittelstaedt sued everybody, including Henney,
the latter for breach of fiduciary duty. The trial judge granted Henney
summary judgement. The others went to trial with mixed results. We will
discuss only the claim against Henney. In this opinion the appellate
court affirmed the summary judgement. We will spare you the details
about the businesses and hit a couple of high points. First, the court
held that elements of a breach-of-fiduciary claim are the same as a
legal malpractice claim. Only the remedies may vary. The reason the
claim against Henney failed was that Mittelstaedt failed to comply with
Minnesota Statutes §544.42, which requires certain filings by, and
about, standard-of-care expert witnesses. Mittelstaedt did not have such
a witness. The court noted that cases against lawyers not requiring
expert testimony are "rare and exceptional," such as blowing the statute
of limitations or stealing client money. The claims here include
violations of Rules 1.7 and 1.8, which involve concepts not within "'the
common knowledge' of most jurors."
Calder v. Uintah County, 2023 WL 5045480 (D. Utah Aug. 8, 2023).
Decedent’s estate is suing County for below-standard medical treatment
of Decedent while in County jail. County planned to use as an expert a
doctor (“Expert”) who had worked in several counties regarding medical
issues among prisoners. He had even been Medical Director of the jail in
this case. The estate moved to exclude Expert in this case. In this
opinion the court denied the motion. First, the court found Expert had
the requisite expertise to testify in this case. Second, as to the claim
that Expert had a conflict, the court noted, after citing cases from
around the country, that the estate’s remedy was to cross-examine Expert
regarding his relationship with County.
Manna Amsterdam Ave. LLC v. West 73rd Tenants Corp., 2024 WL
1513925 (N.Y. App. Div. 1st Dept. April 9, 2024). Mortifoglio is
Plaintiff's damages expert. Gottlieb is Defendant's expert. While this
case was pending, Mortifoglio hired one of Gottlieb's employees. That
employee had done extensive work on this case for Defendant. Defendant
moved to disqualify Mortifoglio. The trial court granted the motion. In
this opinion the appellate court affirmed. [Our note: Defendant
clearly had an expectation of privacy with the employee. But, did the
employee share any of Defendant's information with Mortifoglio or
Plaintiff after going to work with Mortifoglio? The court did not say.]
Kneeshaw v. Super. Ct., No. G064831 (Cal. App. Unpub. 4th Dist.
Nov. 7, 2024). In this unpublished opinion the appellate court reversed a
trial court's exclusion of Plaintiff's expert. The trial court had
noted the expert was a "distant" relative of Plaintiff and Plaintiff is
paying the expert. The appellate court said, in effect, all that was
grist for cross-examination.
Secretariat Consulting PTE LTD v. A Co., [2021] EWCA Civ 6 (Eng.
& W. Ct. App. Jan. 11, 2021). Developer ("Dev") of a petrochemical
plant ("Plant") hired Project Manager ("PM") to manage building Plant.
One of PM's sub-contractors (Sub X), blamed for delays, brought an
arbitration ("Arb. 1") against Dev. for being late with drawings. In
March 2019 Dev hired Consulting Firm ("Consult") for arbitration
support. The hiring agreement contained a confidentiality agreement and
Consult's agreement not to have a conflict of interest. Another party
("Third Party") brought another arbitration ("Arb. 2") against Dev
arising out of delays of the very same project. Third Party hired
Consult (yes, THAT Consult) for arbitration support in Arb. 2. Dev sued
Consult (this case) in High Court for an injunction preventing Consult
from assisting Third Party in Arb. 2. The High Court judge granted the
injunction, holding that Consult had a fiduciary duty to Dev not to have
a conflict and that Consult's retention in Arb. 2 was a conflict. In
this opinion the Court of Appeal upheld the injunction ("dismissed" the
appeal). The court noted that this was a case of first impression and
that existing authority was not of much use. The court discussed (a) the
roles of testifying experts vs. consulting experts, (b) when and
whether a fiduciary duty exists, and (c) the role, if any, of experts'
duty of loyalty. However, the result in this case hinged primarily on
the hiring agreement's conflict-of-interest provision. The court held
that the agreement prevented Consult from having a conflict, and that
there was a conflict in this case. Side note: Consult comprised several
closely-related entities, and the court held that the contractual duty
not to have a conflict applied to all of them.
Reluctant Expert Ordered to Testify. Lecker v. Lecker, 2024 ONSC 4413 (CanLII) (Ont. Super. Ct. Aug.
6, 2024). This opinion discusses an expert witness ("Expert") changing
employers during this case. He moved from RSM Canada LLP to MNP LLP.
Both firms provide accounting and related services, including business
valuations. Expert had prepared a valuation report for Rennie Lecker
("Rennie") while at RSM. After he joined MNP he learned that MNP was
performing services for Bram Lecker ("Bram"), Rennie's opponent in this
case. He then told Rennie's lawyers he had a conflict of interest and
could not proceed for Rennie. MNP also took that position. Rennie then
moved this court to require Expert to testify for Rennie. In this
opinion the court granted that motion. When Expert arrived at MNP, MNP
had erected a screen between Expert and this case. Expert had already
cost Rennie $175,000, and RSM said Rennie would have to incur that cost
again with a replacement witness. The only information Expert had
regarding Bram was from a court-ordered conference with MNP's expert. The court said Expert would have to testify even though doing so "may
conflict with" the CPA Ontario Code of Professional Responsibility and
its Guidance.
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.
Lebamoff Enters., Inc. v. O'Connell, No. 16-cv-08607 (N.D. Ill.
April 30, 2020). An Indiana liquor store owner, and others, are suing
the Illinois Liquor Control Commission regarding the Commission's
regulation of the store's business. The plaintiffs have designated as an
expert witness, Lawyer, who was "chief legal officer" for the
Commission until March 2018. The Commission moved to disqualify Lawyer
as an expert witness. In this opinion the court denied the motion.
Lawyer had superficial familiarity with the case in its early stages.
The court applied expert conflicts principals generally, and Model Rule
1.11. In a fact-specific analysis the court found that Lawyer did not
have confidential information about the matter that would prejudice the
Commission in this case.
Signal Fin. Holdings LLC v. Looking Glass Fin. LLC, 2022 WL
540662 (N.D. Ill. Feb. 23, 2022). This case involves motions to exclude
expert testimony of several proposed witnesses. A lawyer intends to
testify on the applicability of Rules 1.7 and 1.9. The court ruled the
lawyer could testify. The court explained the value to a lay jury of
such testimony. Another of Defendants' proposed witnesses had served as
CEO of Plaintiff for several years where he had access to Plaintiff's
confidential information. The court disqualified that witness. The
latter ruling was buttressed by the fact that the witness had signed a
confidentiality agreement while with Plaintiff.
Mortland v. Castle Hospitality, LLC, 2022 WL 3586661 (W.D. Pa.
Aug. 22, 2022). Plaintiff, who is disabled, brought this ADA suit
against the owner of a motel. In this opinion the court granted
Plaintiff a default judgment because the owner failed to plead. Among
other things, the court ruled that Plaintiff qualified as an expert on
the motel's accessibility and that Plaintiff is entitled to and expert
witness fee of $1,720. The court cited an Ohio case in the which the
court ruled that it was not a conflict of interest for Plaintiff to
serve as an expert witness in his own case and to receive a fee for
serving as an expert.
Beaumont v. Beaumont, No. 1 CA-CV 21-0426 (Ariz. App. Unpub. Jan.
12, 2023). In this marital dispute the parties contested the value of
the marital home. W's lawyer called her husband as an expert on
valuation. The trial court ruled for W on the valuation issue. In this
unpublished opinion the appellate court affirmed the trial court. The
appellate court said that the relationship between W's lawyer and W's
expert was a credibility issue, and the trial court did not err by
considering W's expert's testimony.
Winkelmeyer v. DePuy Orthopaedics, Inc., 2023 WL 2719473 (W.D.
Mo. March 30, 2023). Plaintiffs seek to retain Expert to testify about
the hip replacement technology involved in this case. (We just had our
hip replaced this past March 20!) Some seven years ago Defendants had
contacted Expert about testifying in related hip replacement technology
litigation. Defendants moved to disqualify Expert in this case. In this
long, fact-specific, opinion the court denied the motion to disqualify.
The court determined that there was no expectation of confidentiality in
the earlier contacts, and that whether Defendants had revealed any
information relevant to this case to Expert was highly doubtful. The
opinion is a pretty good review of expert disqualification cases around
the country.
Hawkins v. DePuy Orthopaedics, Inc., 2023 WL 7292164 (D.D.C.
Nov. 6, 2023). This is one of a series of cases dealing with injuries
from allegedly defective hip replacement systems. Expert had originally
done consulting work for Manufacturer/Defendant. Expert has now shown up
as an expert for injured plaintiffs, including Plaintiff here. This was
a very fact-intensive analysis resulting in the disqualification of
Expert. We will spare you with specifics. The court concluded that
Defendant had an expectation of confidentiality from Expert and that
Defendant had shared confidences relating to this case with Expert. Thus
far, Expert has been disqualified in six cases against Defendant and
allowed to remain in one (see case immediately above).
Agri-Systems v. Structural Techs., LLC, 2023 WL 3481397 (D. Col.
May 16, 2023). This is a dispute among contractors about what went wrong
with the construction of a concrete silo. Party 1 objected to the
listing of two construction expert witnesses by Party 2. In addition to
their technical qualifications, Party 1 said the experts were biased
because they were employed by Party 2. The court rejected the bias
arguments, saying the experts' alleged bias goes to the weight of their
testimony, not admissibility. The court also noted that prejudice would
be less likely because the case would not be tried to a jury.
Tumey, LLP v. Mycroft AI, Inc., 2023 WL 6984348 (8th Cir. Oct.
24, 2023). Plaintiffs are suing Defendants for cyberattacks, including
hacking, phishing and identity theft. Early on, Plaintiffs contacted
Expert about the case. They had a conference call of about one hour and
had a few other contacts. Plaintiffs never signed Expert's engagement
letter or paid Expert anything for his time. Expert showed up as
Defendants' witness. Plaintiffs moved to disqualify Expert. The trial
court denied the motion, and after the trial, the jury found for
Defendants. Plaintiffs appeal, seeking a new trial, based on the trial
court's denial of the motion to disqualify Expert. In this opinion the
appellate court affirmed. First, the court noted there was never a
formal relationship between Plaintiffs and Expert. Second, the court
found that Plaintiffs' claim of giving confidential information to
Expert was "vague and unpersuasive." The court also noted that the trial
court had found that any confidences would have been revealed in
discovery.
Greer v. Waste Connections of Tenn., Inc., 2023 WL 8099322 (W.D.
Tenn. Nov. 21, 2023). Plaintiff's treating doctor was listed as an
expert witness. Defendants moved to exclude the doctor from the case,
claiming the doctor had a conflict of interest as both treating doctor
and expert. In this opinion the magistrate judge denied the motion,
saying that the doctor's dual role is "grounds for impeachment"
(cross-examination), not "grounds for exclusion."
Athena Art Finance Corp. v. Certain Artwork by Jean Michel Basquiat Entitled "Humidity,"
2024 WL 1116083 (S.D.N.Y. March 14, 2024). Athena is suing to foreclose
a lien on the painting. (To see the painting, Google "Basquiat
Humidity." It is evidently worth millions.) Athena moved for summary
judgment. In opposition, another party, Delahunty Ltd., has tendered a
written opinion by an expert on the financial aspects of the secondary
art market. Athena moved to strike the opinion, both on grounds of the
expert's qualifications, and because of the expert's earlier work with
Athena. In this opinion the magistrate judge has denied Athena's motion.
At bottom, the court said that all Athens's objections go "to the
weight, not the admissibility" of the expert's opinion, all subject to
cross-examination. [Our note: Given the bizarre nature of the
proceedings, we will not discuss the court's reasoning further. The
magistrate judge's opinion contains a pretty thorough review New York
authorities on admissibility of expert opinions.]
Ross v. Ross, 2024 WL 3260033 (Tex. App. 14th Dist. July 2,
2024). Divorce. In deciding the division of the estate, the trial court
admitted the expert testimony of H's CPA on the value of H's business. W
claims that CPA has a conflict of interest because, in one tax year,
CPA had filed a joint tax return for both H and W. In this opinion the
appellate court affirmed the use of CPA. During that tax year the
couple's only income was H's. Thus, W had no reason to share confidences
with CPA. And, W made no other claim that she had shared confidences
with CPA.
Gill v. JUS Broad. Corp., 2024 WL 4107251 (E.D.N.Y. Sept. 6,
2024). Plaintiff listed Expert Witness on the valuation of a company.
Defendants moved to preclude Expert's testimony on a number of grounds.
One ground was that Expert had a conflict because "he and Plaintiff's
counsel refer business to and perform services for each other." While
that may be grist for cross-examination, it is not grounds for
exclusion. For exclusion, the conflict must be "extraordinary." See, El Ansari v. Graham, 2019 WL 3526714 (S.D.N.Y. Aug. 2, 2019).
Via Appia, LLC v. OP Devel., Inc., No. F087160 (Cal. App. Unpub.
5th Dist. Oct. 21, 2024). Defendants moved to disqualify Plaintiffs' law
firm ("P Firm") because P Firm had consulted with, and tendered as
Plaintiffs' expert, an individual, with whom Defendants' lawyers had
earlier consulted about this case. The trial court disqualified both the
consultant and P Firm. In this unpublished opinion the appellate court
affirmed. The court relied heavily upon a leading case, Shadow Traffic Network v. Super. Ct.,
24 Cal. App. 4th 1067 (1994). The analysis is highly fact-specific, and
limited to California appellate cases, but is a good review of how far a
lawyer may go in messing with the other side's expert.
Vogel v. Vogel,
2024 SKKB 182 (K.B. Sask. Oct. 10, 2024). This is a marital case in
which the monetary values of several businesses and trusts are at issue.
For pre-trial and settlement purposes, H and W agreed to retain Expert
to provide valuation opinions on these entities, which Expert did. This
opinion deals with whether W may request that same expert to prepare a
report for W to use at trial. Over H's objections, the court held W
could request, and Expert could prepare, such a report. The court said
it was not holding the report would be admissible at trial or that
Expert could testify. Those issues would await trial.
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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