III. Counsel's Responsibility for Discovering Expert Witness Conflicts

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

III. Counsel's Responsibility for Discovering Expert Witness Conflicts

Lawyers who are not diligent in rooting out experts' potential conflicts often come to rue their lack of diligence.⁷⁵Cordy v. Sherwin-Williams Co.⁷⁶ represents a worst-case outcome for counsel who a court believes mishandled an expert witness conflict. Not only did the lawyers in Cordy lose their expert, but they were also disqualified.

The plaintiff in Cordy was injured when he rode his bicycle over railroad tracks at a crossing owned by Sherwin-Williams. Lawyers from Brown & Connery, the law firm that was representing the plaintiff, spoke by telephone roughly ten times with an engineer, James Green, concerning his availability as an expert witness. Ultimately, Brown & Connery sent Green a $3,000 retainer. A few days later, Brown & Connery lawyer William Cook signed a retainer agreement with Green. Thereafter, Brown & Connery provided Green with a three-ring binder that contained the firm's investigative materials. While Green rendered at least one oral opinion, he never submitted a written report. Green subsequently resigned as the plaintiff's expert and returned the retainer.⁷⁷

Approximately three months later, Sherwin-Williams' attorney, Barbara Davis, called Green. During their initial conversation, Green revealed that he had been "'consulted' by Brown & Connery."⁷⁸ There was some debate concerning whether Green told Davis of the oral opinion he rendered to plaintiff's counsel. Green later sent Davis a retainer agreement, which she signed on behalf of her firm. Davis then sent Green an engagement letter instructing him not to disclose to the defense any information that he either received from or provided to Brown & Connery.⁷⁹ Green ultimately furnished Davis with a written report reflecting his opinion that the plaintiff's "accident was caused by a defect in the bicycle, not by the railroad crossing."⁸⁰ Apparently, Green never shared with Davis any of the information he obtained from Brown & Connery.⁸¹

The Cordy court easily concluded that Green should be disqualified. The court viewed the plaintiff's counsel as having reasonably assumed that they shared a confidential relationship with Green and determined that confidential information had been shared.⁸² Many of the materials included in the three-ring binder were not otherwise discoverable, and Green admitted that the plaintiff's counsel told "him of their theory of the case and their targeted defendants."⁸³ The evidence of a confidential relationship was "overwhelming," and the court believed that it was "simply not possible for Green to ignore what he learned from Brown & Connery."⁸⁴

After disqualifying Green, the Cordy court disqualified defense counsel, who did nothing to discover the nature of the relationship between Green and Brown & Connery.⁸⁵ The court was displeased by defense counsel's apparent hear-no-evil, see-no-evil approach to the situation and found that at the very least Davis or a colleague should have contacted the plaintiff's lawyers to ascertain the nature of their relationship with Green before hiring him.⁸⁶ Whether Davis or her firm ignored warning signs or actually encouraged Green's misconduct was not a question that the court needed to answer. Either way, defense counsel's conduct "was wanting."⁸⁷

Not all courts adopt Cordy's reasoning entirely. A dispute between Amway and Procter & Gamble (P&G) in a Utah federal court spawned two opinions on disqualification, Haugen I and Haugen II.⁸⁸ P&G was the plaintiff in the Haugen litigation and Amway and several of its distributors were the defendants. In Haugen I, the court refused to disqualify P&G's counsel.⁸⁹ In Haugen II, the court declined to disqualify P&G's expert witness.⁹⁰

Both Haugen I and Haugen II involved a psychology professor who was an expert on rumors, Dr. Nicholas DiFonzo.⁹¹ The effect that rumors might have on the consuming public was a key issue in the case, as P&G alleged that several of the defendants had spread rumors to the effect that P&G's "man in the moon" logo supposedly evidenced the company's link to satanic worship.

In May 1996, Amway's attorneys arranged to meet and consult with DiFonzo. The attorneys paid DiFonzo a consultation fee and met with him in June 1996. The Amway attorneys extensively discussed material relevant to the case with DiFonzo but did not reveal their litigation strategy.⁹² Amway's lawyers did not consult further with DiFonzo, nor did they exchange additional information. DiFonzo and defense counsel made no plans for future meetings, nor did Amway's lawyers attempt to restrict DiFonzo from discussing the case with others.⁹³ No agreement was reached with DiFonzo to serve as Amway's expert, and he did not consider himself so employed.⁹⁴ DiFonzo did not conduct any research or calculate any data for Amway. In sum, there was no evidence "that DiFonzo was a retained expert in any capacity [for] Amway" in the litigation.⁹⁵

In June 1998, P&G approached DiFonzo. In conversations with DiFonzo, counsel for P&G determined that DiFonzo had discussed the case with Amway's attorneys on one occasion in 1996, but had not communicated with Amway's counsel in the two years since.⁹⁶ P&G's counsel never asked DiFonzo about the substance of the 1996 meeting, although DiFonzo apparently volunteered that Amway's lawyers had shared no confidential information with him.⁹⁷ P&G retained DiFonzo as an expert in August 1998.⁹⁸ It would ultimately be established that all the information that DiFonzo relied on to formulate his opinions in the Haugen litigation came from his independent scholarly and research activities.⁹⁹

When P&G gave Amway a copy of DiFonzo's expert report in discovery, Amway moved to disqualify P&G's counsel and DiFonzo.¹⁰⁰ Amway contended that DiFonzo's...