IV. Recurring and Emerging Expert Conflict Issues

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

IV. Recurring and Emerging Expert Conflict Issues

A. Affiliated Experts within the Same Firm or Practice

Experts within the same consulting firm, medical practice, or other professional services firm may be unknowingly retained by opposing sides of a dispute, creating a situation in which affiliated experts stand to offer conflicting opinions. Courts recognize that "it is inherently difficult for two experts from the same firm to be as critical of each other and of the other's analysis as it would be for experts from different firms."¹²⁴ Some courts also believe that it "would be unseemly, at best, to permit representatives of the same [professional] firm to testify on opposite sides of the case, and to expect [them] to be objectively critical of each other's testimony."¹²⁵ Notwithstanding these concerns, the mere fact that opposing experts are affiliated with the same firm does not necessarily mean that either one will be disqualified. Nor would their firm itself be disqualified, because—in contrast to how conflicts are imputed within law firms—courts generally do not impute expert witness conflicts to other members of an expert's firm.¹²⁶ Instead, courts tend to apply safeguards such as screens to prevent transmission of confidential information.¹²⁷

Hansen v. Umtech Industrieservice Und Spedition, GmbH.,¹²⁸ where the opposing experts were employed by the same corporation,¹²⁹ is instructive. Hansen was a product liability action brought by Joseph Hansen, who was seriously injured while using a machine allegedly manufactured by Umtech. In December 1995, Umtech's counsel, Patricia Garthwaite, called Thomas Yohe, a vocational rehabilitation expert who worked for Delaware Valley Rehabilitation Services, Inc. (DVRS). Garthwaite asked Yohe if DVRS had any potential conflict of interest that might preclude consultation; Yohe stated that there was no conflict.¹³⁰

Garthwaite and Yohe discussed facts bearing on Umtech's liability, Garthwaite's analysis of the accident, specific facts related to Hansen's relevant job duties and salary, and "the relative strengths and weaknesses of [Umtech's] defense posture [on Hansen's vocational rehabilitation] in light of [Hansen's] age, level of training and marketable skills."¹³¹ The next day, Garthwaite sent Yohe a letter confirming his retention as an expert, including a request for confidentiality.¹³² Yohe then faxed a letter to Garthwaite identifying documents typically necessary for a vocational rehabilitation expert to review in a personal injury action. No one at DVRS took any action with respect to Yohe's fax or the case in general.

About three months later, Hansen retained another DVRS employee, Jose Castro, to serve as his vocational rehabilitation expert. Castro ran a computerized conflicts check which did not reveal Yohe's representation because Yohe had not entered his representation of Umtech on the system. Yohe was on vacation and could not alert Castro to the conflict. Thus, Castro agreed to the representation and, a few weeks later, prepared an expert report for Hansen. Umtech then moved to disqualify Castro and DVRS based on its prior engagement of Yohe.¹³³

The Hansen court assumed that Garthwaite and Yohe shared a confidential relationship and focused on whether Garthwaite actually revealed any confidential or privileged information to Yohe. As the court explained:

While [Garthwaite] stated that she discussed her analysis of the case, including its strengths and weaknesses, with Yohe, Yohe has no recollection of the details of that conversation. Additionally, Garthwaite's disclosures in connection with the liability phase of the case are not germane to either Yohe's expertise or expert opinion [on vocational rehabilitation]. Further, Yohe forgot about the case entirely until the conflict was made known to him by Castro and Umtech's counsel. It is clear, then, that to the extent that counsel disclosed confidential information, Yohe did not in any way use that information. Furthermore, and more importantly, Yohe never discussed the case with anyone, including Castro. Suffice it to say that if the expert himself can't remember any of the information, he certainly could not have passed it along to the other expert.¹³⁴

Yohe and Castro maintained separate practices, had limited interaction beyond polite conversation, and neither man supervised the other. The lack of evidence that Yohe and Castro exchanged substantive information, coupled with the fact that there was no prospect of future inadvertent disclosure, led the Hansen court to conclude that Castro's and DVRS's disqualifications were unwarranted.¹³⁵ The court thus denied Umtech's motion to disqualify Castro.¹³⁶

The Supreme Court of Virginia applied the same rationale in Wright v. Kaye,¹³⁷ finding that without evidence that confidential information had been shared, a physician employed in the same medical practice as the plaintiff's medical expert could testify for the defendant without the plaintiff's consent. The Kaye court specifically rejected the plaintiff's argument that a disclosure of confidential information to an affiliated expert could be presumed. "Absent evidence of an actual exchange of confidential information, an affiliated expert should not be excluded and no disqualifying conflict exists."¹³⁸

In Sells v. Wamser,¹³⁹ the court took a harsher approach when facing a situation in which experts from the same engineering firm were retained by opponents in a wrongful death action. The case arose out of an accident in which a vehicle driven by the decedent, Gregory Sells, struck a tractor-trailer rig driven by defendant Michelle Wamser. Gregory Sells's widow, Gail Sells, filed the suit. Shortly after the accident, her counsel hired Dr. John Wiechel, a mechanical engineer employed by the forensic engineering firm S.E.A., Inc., to serve as an expert witness. Wiechel visited the crash site and did additional work, billing plaintiff's counsel more than $2,500. Before Wiechel was disclosed as a testifying expert, defense counsel retained another mechanical engineer from S.E.A., Ricky Stansifer, as an expert for the defendants. Stansifer had run a conflict of interest check, but due to an innocent mistake in the process, he did not realize that Wiechel was investigating the same accident. Stansifer and Wiechel later discovered that they were working on the same case by chance. At the time of the discovery, Stansifer had reenacted the accident and done related work. Although it was undisputed that the experts had not shared information with each other, the plaintiff moved to prohibit the defendants from using any information from S.E.A.

Even though there was no evidence that confidences had been shared or might be in the future, the Sells court was hostile to the idea that both experts could continue to be involved in the case. Because it could not be reasonably expected that experts from the same firm would be "objectively critical" of one another's testimony, "one thing is clear: S.E.A. cannot be permitted to continue as an expert for both parties."¹⁴⁰ Indeed, the court observed, it would be "unseemly" to permit that arrangement.¹⁴¹ Thus, the Sells court believed it had three options: disqualify S.E.A. altogether, disqualify Wiechel, or disqualify Stansifer.¹⁴²

The court first examined the relative advantages and disadvantages to the parties and found that there were none (in large part because no information had been shared). Thus, the court believed that in the absence of some advantage to one side or the other, the fair result would be to put the parties in the position where they would have been had the conflict not developed, i.e., Wiechel would be the plaintiff's expert and Stansifer would not have been hired by the defense.¹⁴³ The court presumed that S.E.A. would reimburse the defendants for the money paid for Stansifer's work.¹⁴⁴

At the time Sells was decided, the two-part test for expert witness disqualification used in Cordy had been articulated, but it had not been widely accepted. Perhaps that is why the Sells court did not cite it, much less apply it. Considering that Wiechel and Stansifer had not shared confidences with one another and were unlikely to in the future, neither expert nor S.E.A. would have been conflicted out of the case under the general test. Alternatively, the Sells court may have deliberately ignored the two-part test because the result that it considered appropriate could be justified only by applying catch-all policy considerations of preserving the integrity of judicial proceedings.

B. Former Employees Testifying as Experts against Former Employers

Any business understandably flinches at the thought of a key former employee being called as an adverse fact witness and testifying about or otherwise disclosing sensitive business or technical information. But other than to protect the disclosure of confidential information, there is generally no basis to exclude adverse testimony from a former (or even current) employee if it is otherwise relevant. Extending the analysis, how should a court respond when a former employee is not called as an adverse fact witness, but rather as an expert witness for an adversary? An expert's former employment does not, in and of itself, create a disqualifying conflict of interest. Where the former employer's confidential, proprietary, or technical information forms the basis for the former employee's expert testimony, however, courts have unhesitatingly disqualified would-be expert witnesses.¹⁴⁵ Where former employees are involved, some courts are willing to expand the definition of confidential information to include proprietary business and technical information in addition to information that is privileged or work product.¹⁴⁶

For example, in Thompson, I.G., L.L.C. v. Edgetech I.G., Inc.,¹⁴⁷ Thompson, a window manufacturer, sued Edgetech for alleged defects in an Edgetech product called Super Spacer, which was a thermal seal Thompson used in...