Commercial Litigation and Arbitration

Both Parties Consult with Individuals from the Same Expert Witness Firm — Defendant Retains First, and Individual Plaintiff Spoke with Co-Signs Defense Report — Standards for Disqualifying Side-Switching Experts

From Young v. So. Cal. Trans., Inc., 2010 U.S. Dist. LEXIS 22332 (S.D. Miss. Mar. 10, 2010):

The plaintiff contends that the defendants' involvement of Dr. Metzler [with whom the plaintiff had discussions early on] as an expert in this case violates F.R.C.P. 26(b)(4)(B), which limits the ability of a party to discover facts known or opinions held by an opposing party's expert who is not expected to testify. Further, because counsel for the plaintiff had held discussions with Dr. Metzler prior to learning of the involvement of the defendants' consultation with Dr. Weichel [the designated defense expert], and had allegedly disclosed to Dr. Metzler his knowledge, concerns and theories of the case, counsel contends that allowing any employee of SEA, Ltd. [the firm employing both Metzler and Weicherl], to act as an expert for the opposing parties would also result in the disclosure and use of protected work product in violation of F.R.C.P. 26(b)(3).

Rule 26(b)(4)(B) of the Federal Rules of Civil Procedure states that "a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial" in the absence of exceptional circumstances rendering it impracticable for the party to obtain facts or opinions on the same subject matter by other means.

Rule 26(b)(4) is designed to promote fairness by precluding unreasonable access to an opposing party's trial preparation. See Advisory Committee Notes, Fed.R.Civ.P. 26(b)(4)(B); Ager v. Jane C. Stormont Hosp. & Training School for Nurses, 622 F.2d 496, 502 (10th Cir.1980); and 4 MOORE'S FEDERAL PRACTICE P 26.66[4] (1987). Furthermore, the rule makes no provision for ex parte communication with a party's expert witness by the opposing party. See, Zvolensky v. Ametek, Inc., 142 F.3d 438 (6th Cir. 1998)("Generally, non-testifying experts are protected from discovery so as to allow a party to feel free to hire and consult with such experts without risking exposing certain information to the opposing party.... Likewise, the same reasoning would apply to prevent the opposing party from calling as a witness at trial that same expert."); Durflinger v. Artiles, 727 F.2d 888, 891 (10th Cir. 1984)(In proceeding as they did [ex parte], defendants circumvented the discovery process and subverted the principle of fairness that underlies Rule 26(b)(4)(B).").

According to Koch Refining Company v. Jennifer L. Boudreaux MV, 85 F.3d 1178, 1181-82 (5th Cir. 1996), and other than cases where an expert has clearly switched sides, a two-part test is utilized to determine whether an expert must be disqualified, the burden of proving which is borne by the moving party.

First, was it objectively reasonable for the first party who claims to have retained the expert to conclude that a confidential relationship existed?

Second, was any confidential or privileged information disclosed by the first party to the expert?

If the answer to both of these questions is in the affirmative, then the expert must be disqualified; however, if the answer to either question is negative, the expert may not be disqualified. See Wang Laboratories, Inc. v. Toshiba Corp., 762 F.Supp. 1246, 1248 (E.D. Va. 1991).

Initially, the court must decide whether the moving party and the expert had "a relationship which permitted [the retaining party] reasonably to expect that any communication. . .would be maintained in confidence by [the expert]." In re Ambassador Group, Inc. Litigation, 879 F.Supp. 237, 243 (E.D. N.Y. 1994). In this vein, the case of Mayer v. Dell, 139 F.R.D. 1 (D.C. 1991) is instructive. Therein, the plaintiff sued a former management/investment firm for losses stemming from the firm's alleged poor investment choices.... During the litigation, John Little, a CPA, had a single meeting with the firm's attorney to discuss the case, but was never retained by the firm's attorney to serve as an expert, performed no work for the firm, received no fee from the firm, and received no correspondence from the firm other than the Complaint.... Thereafter, Little was engaged by the plaintiff as an expert.... The firm then sought to disqualify Little from the case. ***

The court, in analyzing the lone meeting of Little and the firm's counsel, held that such was a mere consultation to determine whether Little may later be retained, elaborating that:

... with respect to a circumstance in which, as here, the expert met but once with counsel, was not retained, was not supplied with specific data relevant to the case and was not requested to perform any services, a reviewing court found that the evidence "supports the findings that the meeting was a type of informal consultation rather than the commencement of a long term relationship." Nikkal Industries, Ltd. v. Salton, Inc., 689 F.Supp. at 190.

***It is noteworthy that other district courts have held similarly with regard to an expert who has been consulted on a case. See Mays v. Reassure American Life Ins. Co., 293 F.Supp.2d 954, 956- 957 (E.D. Ark. 2003)(nothing in the Federal Rules prohibits a party from calling as its expert witness a person who might have been consulted by an opposing party.); and Procter & Gamble Co. v. Haugen, 184 F.R.D. 410, 412-13 (D. Utah 1999)(no provision in Federal Rules providing for disqualification where expert has consulted with other side.).

Although unnecessary, the Mayer court further addressed the second prong of the inquiry concerning the disclosure of confidential information.... The firm's sole evidence concerning the disclosure of information was provided by the affidavit of its attorney, which stated that the discussion with Little concerned "plaintiff's strategy in the litigation, the kinds of experts [plaintiff] expected to retain, plaintiff's view of the strengths and weaknesses of each side, the role of each of the plaintiff's experts to be hire and anticipated defenses." *** The court found that such a discussion did not implicate the disclosure of privileged information. The court further ruled that such was merely "a flow of information which was essentially technical." *** Finding neither prong of the analysis satisfied, the court denied the motion to disqualify Little. ***

Similarly here, the plaintiff's counsel had a single meeting with Dr. Metzler and perhaps other conversations which were mostly concerned with other issues. During their one meeting at the conference, the plaintiff's counsel contends that his discussions with Dr. Metzler "included a frank and candid disclosure by counsel of his perceptions of the weaknesses of the case and his theories regarding the proof necessary to address them." .. Dr. Metzler indicates that the discussion was not so detailed according to her recollection but even assuming arguendo that this allegation is true, such a consultation does not meet the requirement for the formation of a confidential relationship.... Moreover, such a vague discussion does not implicate the application of the attorney work-product privilege. See Mays v. Reassure Am. Life Ins. Co., 293 F.Supp.2d 954, 957 (E.D. Ark. 2003)(the party seeking to disqualify must identify "specific and unambiguous disclosures that if revealed would prejudice the party.").

Motion to disqualify expert denied.

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