II. Expert Witnesses and Conflicts of Interest

• Library: Professional Responsibility in Litigation (ABA) (2016 Ed.)

II. Expert Witnesses and Conflicts of Interest

Lawyers may consult with several experts before engaging one. Initial communications with experts are sometimes complicated because counsel may have to share opinion work product or divulge a client's sensitive business or technical information to evaluate a prospective expert's suitability. Weeks or even months may pass between an initial consultation and an expert's engagement, during which time the expert may be approached by an opponent.

Several questions arise from these scenarios and other related expert conflict situations. For example, what happens if a party communicates with an expert who has obtained confidential information from an adversary, but has not been retained by the adversary? What if an expert witness who possesses confidential information is retained by the second party and can use that information to the first party's detriment? What if experts who are or may be on opposite sides of a case communicate directly? Must one or both experts be disqualified? What if two experts within the same consulting firm or medical practice are unknowingly retained by opposing parties? Should either expert be allowed to testify when presumably he or she will contradict a colleague? What responsibilities, if any, does the second attorney who communicates with an expert have to explore whether there are potential conflicts and, if there are, what, if anything, must counsel do then? Should an employee who has executed a confidentiality or nondisclosure agreement as a term of employment be allowed to consult with or testify as an expert against the employee's former employer? Does the analysis change if the former employee did not sign a confidentiality agreement?

From a trial lawyer's perspective, an even worse scenario arises when an expert witness has been retained and disclosed, and then offers opinions that benefit the adversary. Should the retaining party be allowed to withdraw the expert and thereby avoid the unfavorable testimony, or has the expert "switched sides," allowing the delighted adversary to call the expert in support of its case? Such testimony has the potential to be explosive.

Conflicts of interest vex lawyers in all practice areas. Trial lawyers may assume that the analysis for expert witness conflicts is the same as that applied to attorney conflicts of interest. But the rules and guidelines are different because courts view lawyers' and expert witnesses' roles differently.³ Expert witnesses do not owe the parties or lawyers who engage them the sort of undivided loyalty that lawyers owe clients. While lawyers are advocates for their clients, testifying experts are supposed to be objective sources of knowledge and opinions that will aid the trier of fact.⁴Expert witnesses are viewed (at least in theory) not as advocates, but rather as independent servants of the court.⁵ Consequently, as a general rule, an expert may accept concurrent engagements for and against the same party, may concurrently work with and against the same lawyer or law firm, and may testify adversely to former clients. Experts' professional freedom is not absolute, however. Agency principles generally require expert witnesses to reasonably safeguard client confidences and refrain from trading on confidential information for personal gain or any other improper purpose.

Although it is commonly known that lawyers are governed by rules of professional conduct, other professions have also enacted ethics codes intended to prevent or regulate conflicts of interest. For example, the National Society of Professional Engineers has enacted a Code of Ethics for Engineers which provides that members "shall not reveal facts, data or information without the prior consent of the client or the employer except as authorized or required by law or this Code."⁶ In regard to loyalty, professional engineers must "disclose all known or potential conflicts of interest that could influence or appear to influence their judgment or the quality of their services."⁷ Additionally, professional engineers are prohibited from accepting compensation, whether "financial or otherwise, from more than one party for services on the same project, or for services pertaining to the same project, unless the circumstances are fully disclosed and agreed to by all interested parties."⁸ Certified public accountants who are members of the American Institute of CPAs "should maintain objectivity and be free of conflicts of interest in discharging [their] professional responsibilities."⁹ The American Institute of Architects' Code of Professional Ethics and Conduct provides in Rule 3.201 that a member "shall not render services if the Member's professional judgment could be affected by responsibilities to another project or person, or by the Member's own interests, unless all those who rely on the Member's judgment consent after full disclosure."¹⁰

The greatest constraint on an expert witness's acceptance of conflicting engagements is a practical one: during the retention, lawyers may request that an expert not accept a second engagement at odds with the first. The importance of such an agreement to the lawyer and the client is easily understood through an example.

Assume that a manufacturer has been sued in a product liability action. The manufacturer and its outside counsel identify a respected engineer to testify that the manufacturer's product is not defectively designed. It will certainly cause the manufacturer and its lawyer great discomfort to see their expert engineer appear on the opposite side of another product liability action against the manufacturer, this time opining that a different product made by the manufacturer is defective and unreasonably dangerous. Although the matters are unrelated, accordingly posing no threat to the manufacturer's confidences or lawyer's work product, the expert's dual positions place defense counsel in the difficult position of having to extol the expert's opinion in one case while attacking it in another. Most lawyers would find this situation to be detrimental to the expert's credibility in the first case, damaging to the client's position in the second case, or both. The retaining lawyer unquestionably would prefer to avoid this dilemma, even if there is no ethical bar to the expert's actions. The expert is, of course, free to decline the representation if he finds the manufacturer's terms or conditions unacceptable.

There are other practical constraints on experts' freedom of action that are subtle and difficult to quantify. For example, expert witnesses depend on references from lawyers to generate business. Lawyers and law firms may employ a particular expert more than once; in fact, repeat engagements are common. Expert witnesses who put themselves in a position to be accused of disloyalty, or who are perceived as untrustworthy, jeopardize their professional reputations and thus their incomes.

A. Conflicts of Interest and Disqualification Generally

Conflicts of interest that involve expert witnesses are a threat to litigants on both sides of the dispute. A party who shares confidential information with an expert only to see that expert join the other side is threatened with exposure of key evidence or a possible waiver of opinion work product protection. The party who obtains its adversary's confidences from an expert witness may see its key expert disqualified.¹¹ The discovering party's attorneys also may be disqualified,¹² and the attorneys may be subject to professional discipline.

There is considerable authority establishing that both state and federal courts have the inherent power to disqualify expert witnesses,¹³ although instances of disqualification are rare.¹⁴ There is some authority for the idea that when an expert is first retained by one party and "simply switches sides during the litigation, the conflict of interest is so obvious that disqualification is always required."¹⁵ That sounds sensible, but begs the question of what exactly it means to "simply switch sides." And when exactly does an expert join one party's "side"?

To determine when disqualification is appropriate because of an expert's previous contact or relationship with another party, courts almost unanimously apply a two-part test. First, was it objectively reasonable for the first party who retained the expert to believe that a confidential relationship existed? Second, did that party disclose confidential information to the expert that is relevant to the case at hand?¹⁶ The general rule is that the answers to both questions must be "yes" to disqualify an expert witness.¹⁷ At a minimum, disqualification is not likely to be appropriate absent dual affirmative answers unless there are compelling, case-specific policy considerations that drive a different result.¹⁸ The presence of such considerations is uncommon.

The party seeking the expert's disqualification bears the burden of establishing both prongs of the standard test and, if necessary, any additional case-specific factors compelling disqualification.¹⁹ Conclusory assertions about alleged conflicts of interest or the transmission of confidential information will not satisfy this burden.²⁰ If the party crying foul should not have reasonably believed that it shared a confidential relationship with the expert, the expert should not be disqualified.²¹ If neither the complaining party nor its counsel disclosed confidences to the expert, the expert should usually not be disqualified.²² After all, parties' confidentiality rights, and by extension their lawyers' mental impressions, thought processes, and trial strategy, are central to expert witness conflict of interest doctrine. With respect to the second prong of the test, the party seeking disqualification need not prove that the expert will necessarily use or reveal the confidential information at issue; the mere fact that the expert has obtained the information will support disqualification.²³

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