Best Practices for Avoiding Expert Witness Disqualification

Courts rarely disqualify expert witnesses due to conflicts of interest. However, if a court feels that there are sufficient concerns involving confidentiality, it will heavily consider disqualifying an expert. While disqualification is rare, it can be a devastating possibility. It is vital to understand how to limit your exposure to disqualification when working with experts on any case.

There are several situations in which confidentiality may become compromised to the extent that a court may disqualify an expert. One situation occurs when an attorney communicates with an expert who is retained by his opponent at the time. This may lead to the attorney being disqualified as well, such as in Crenshaw v. MONY Life Ins. Co., 318 F. Supp. 2d 1023,1025 (D.S.D. 2003).

Another situation occurs when an expert agrees to be retained by a party after previously serving as an expert for the other side in a different case. This happened in Thompson, IG, LLC v. Edgetech IG, Inc., (E.D. Mich. 2012).

Additionally, parties may retain an expert witness formerly employed by its adversary, which can also lead to a disqualification challenge. Finally, any other issues relating to expert witness contact, past or present, with a party’s adversary at trial can be a vector for expert disqualification. If such a conflict is present, a party may object to the other party’s use of an expert witness.

Defending Against a Motion for Expert Witness Disqualification

The party filing a motion to disqualify a witness due to a conflict of interest has the burden of proof. The moving party must therefore establish that a confidentiality issue exists, and that it is not waivable. Communications between parties and experts are not presumed to be confidential. So the moving party will need to point to specific disclosures that if revealed would result in prejudice to the moving party. Or that there is an objectively reasonable basis to believe that this confidential relationship existed.

Once this burden of proof is met, the burden switches to the party opposing the motion for disqualification to prove that no confidentiality conflict actually exists. One way can be to show that the conflict was waived. This would be applicable if the information was already shared by the opposing counsel and was therefore not actually confidential. A party can also prove that only technical information, or easily discoverable information was exchanged. While nothing related to litigation strategy or anticipated defenses was discussed.

If an opposing party can not show any of the above, they can still attempt to argue that the motion for disqualification was not raised in a timely fashion. A court may also decide that at the current point in the trial, it may be unjust to require the party to seek out a new expert. For those preparing for potential disqualification challenges, reviewing a motion to disqualify a witness list sample can provide useful insights into structuring your approach and understanding what courts may require.

Understanding The Test for Disqualification

The majority of courts have adopted a two-pronged test for determining when the disqualification of an expert witness based on a conflict of interest is appropriate. Understanding how this test functions is vital for preventing expert disqualification. This test is best seen in the following case:

West Virginia ex rel. Billups v. Clawges, 620 S.E.2d 162, 167 (2005)

In this case, the plaintiffs petitioned to the Circuit Court of Monongalia County to overturn an order by the trial court that would permit the defendants, the hospital, the doctors and others, to retain as an expert witness a doctor whom petitioners previously had engaged in the underlying malpractice action.

In that instance, the petitioners’ counsel contacted the doctor to request a review of medical records of the injured party. The doctor concluded that the records did not support the issuance of a medical screening certificate of merit. The Defendant hospital in the case independently located the same doctor and notified petitioners of its desire to retain the doctor as an expert. Petitioners contended that their exchanges of information with the doctor were privileged communications.

The two prongs developed by the appellant court in Clawges to determine whether the disqualification of an expert witness based on a conflict of interest would be appropriate are:

1. Did the moving party possessed an objectively reasonable basis to believe that a confidential relationship existed between the party and the expert witness?
2. Has confidential or privileged information been provided to the expert by the moving party?

Typically, both factors must be present to merit disqualification; however, some courts simply require an affirmative response to the first prong. After which the burden shifts to the party opposing disqualification. In Clawges, the appellate court found no error in the trial court’s ruling as the allegedly privileged information was contained in the medical records of the injured party, the notice of claim, the screening certificate of merit, and the complaint, or would have been discoverable under the Rules of Civil Procedure.

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The movants in Clawges were unsuccessful because the court believed they failed the second prong of the test, and that the information provided to the expert was not actually privileged. This definition of privileged includes information that was exchanged in confidence in relation to the matter at hand. It was expected to remain confidential. Information that is public knowledge, or would be easily discoverable in trial, is not considered privileged when it comes to party-expert communications.

A court will also consider whether the information discussed was merely technical as opposed to strategic in determining whether the communication was privileged. In addition, a court will not disqualify an expert due to the exchange of privileged information if there was a waiver of confidentiality in regard to the information.

So what are the factors a court may use in evaluating the first prong, determining whether there is an objectively reasonable basis to believe that a confidential relationship exists between the party and the expert witness? Courts have considered a number of factors, which have been laid out in another major case.

Oracle Corp v. DrugLogic, Inc. (N.D. Cal. 2012)

In this patent case, the plaintiffs, Oracle Corp., filed a motion to disqualify the defendant’s expert. This was on the basis that he still owed Oracle ongoing duties, including a duty of confidentiality, because of consulting work he did for Oracle from 2002-2008. The expert took the position that he had no access to any confidential information related to the case at hand while he was in that consulting position.

The factors the court used to determine whether Oracle possessed an objectively reasonable basis to believe that a confidential relationship existed between the company and the expert witness included:

1. Whether a longstanding relationship existed that involved frequent contacts instead of a single interaction with the expert;
2. Whether the parties entered into a formal confidentiality agreement;
3. Whether the expert was asked to agree not to discuss the case with the opposing parties or counsel;
4. Whether the expert derived any of his specific ideas from work done under the direction of the retaining party;
5. The number of meetings between the expert and the attorneys;
6. Whether the party retained the expert to assist in litigation
7. Whether the expert was paid a fee;
8. Whether work product was discussed or documents were provided to the expert;
9. Whether the alleged confidential communications were from expert to party or vice versa;
10. Whether the moving party funded or directed the formation of the opinion to be offered at trial; and
11. The extent to which expert learned of the party’s litigation strategies.

The court in Oracle found that there was a reasonable basis to believe a duty of confidentiality existed because of the length and extent of Oracle’s relationship with the expert. As well as the fact that he had signed multiple confidentiality agreements with them upon termination of their relationship. This disqualified the expert from testifying about one of the outstanding patent issues for which the second prong was satisfied. However, the expert was still allowed to testify on the subject of a different patent. As the court determined there was no way he actually received confidential information relating to.

Aside from the two-pronged test, some courts may consider the public interest in allowing or not allowing an expert to testify. Furthermore, a court may consider factors impacting general fairness. Such as when one party attempts to “conflict out” every potential witness so that the opposing party can not retain anyone without a conflict existing.

Conclusion

Avoiding expert disqualification starts by understanding the circumstances that might lead to an undisclosed, or undiscovered, conflict of interest. Exhaustive vetting, background research, and due diligence are a requirement anytime you are considering an expert for formal retention. While time and resource-consuming, it is the only way to avoid the possibility of disqualification.