5.11 Disqualification of Experts

• Library: Medical Malpractice Law in Virginia (Virginia CLE) (2017 Ed.)

5.11 DISQUALIFICATION OF EXPERTS

Generally, the decision to disqualify an expert witness is within the discretion of the circuit court. If a consultant has been indisputably retained as an expert and given confidential information by one party, that witness should clearly be disqualified from serving as an expert for the adverse party in the same litigation. ⁷⁸ But few cases are this "cut-and-dried." More frequently, the parties dispute either the retention of the expert or the dissemination of confidential information, or both.

In Turner v. Thiel, ⁷⁹ the Virginia Supreme Court established which test the circuit courts must apply to disqualify an expert previously retained by an adverse party. In Turner, the plaintiff's counsel asked a well-established expert to review a potential medical malpractice claim. In the letter accompanying the medical records, counsel outlined the potential claim and specifically asked the expert to concentrate on certain acts of medical negligence and issues of proximate cause. The expert reviewed the files and, in a telephone conference, discussed his conclusions with the plaintiff's counsel as well as...