VI. Ex Parte Communications with Expert Witnesses

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

VI. Ex Parte Communications with Expert Witnesses

Generally speaking, Model Rule 4.2 does not prohibit ex parte communications with expert witnesses. A lawyer for a party who engages an expert witness does not automatically represent the expert as well. As a result, courts may allow lawyers to have ex parte contact with experts,¹⁶⁴ as long as they do not attempt to obstruct another party's access to evidence.¹⁶⁵ Brown v. Hamid¹⁶⁶ is an interesting case in point.

Brown was a medical malpractice action. In response to defense counsel's expert witness interrogatories, the plaintiff's attorney summarized the opinion of a non-treating physician. The plaintiff then designated that physician as an expert. The defense lawyer telephoned the expert to confirm that he provided the information used to answer the interrogatories. During this call, the defense lawyer stated that a distinguished retired physician with no interest in the case believed that the defendant did not commit malpractice.¹⁶⁷ The defense attorney further told the expert that he had defended one of his colleagues, and that he had once employed another of the doctor's colleagues as an expert witness.¹⁶⁸ The expert believed that the lawyer's comments were not a "'big deal,'" but he also believed "the real reason for the 7- to 10-minute call was to 'dissuade' him from testifying as an expert by exerting 'social pressure.'"¹⁶⁹

The Brown court determined that the portion of the discussion regarding the expert's provision of information to answer interrogatories was proper, because no rules prohibit parties from using informal discovery, including ex parte discussions, to learn about matters previously disclosed. The disclosures in the plaintiff's interrogatory answers provided prior to the ex parte conversation were sufficient to waive her claims of work-product immunity even though they preceded the physician's deposition.¹⁷⁰ Sounding a cautionary note, the Brown court warned that in some instances, attorneys' attempts to pressure experts into not testifying may constitute ethical or criminal violations. The court concluded that the defense lawyer committed no violations, since the expert testified at trial without changing his testimony.¹⁷¹

As Brown cautions, lawyers who communicate with adverse or potentially adverse expert witnesses should be alert to the Model Rule 3.4(a) prohibition against "unlawfully obstructing] another party's access to evidence,"¹⁷² as well as the general prohibition in Model Rule 3.4(f) against requesting that a person other than a client "refrain from voluntarily giving relevant information to another party."¹⁷³ A lawyer may violate Rule 3.4(a) by attempting to unlawfully dissuade a witness from testifying.¹⁷⁴ Model Rule 3.4(f) generally prevents attempts to dissuade witnesses from testifying for any reason. Neither rule requires an explicit instruction or overt threat for a violation. A lawyer may violate either rule by, for example, indicating that a witness's communication with or testimony for another party might expose the witness to liability, or that by not testifying or speaking to the other party the witness would avoid potential liability.¹⁷⁵

Communicating with an expert's employer in an effort to prevent an expert from testifying may also violate Model Rules 3.4(a) and (f), as Sanderson v. Boddie-Noell Enterprises, Inc.¹⁷⁶ illustrates. Sanderson was a slip-and-fall case in which Ronnie Sanderson alleged that Boddie-Noell failed to clear ice and snow from the sidewalk outside its Hardee's restaurant. Sanderson's lawyer, Joel Bieber, expected that Boddie-Noell would claim that it had no duty to remove the ice and snow because precipitation was still falling at the time of Sanderson's accident. Bieber recognized that he would need a meteorologist as an expert and called the sales manager at a local television station, Richard DePilla, to see whether the station would permit one of its meteorologists to testify as an expert. Bieber knew DePilla because he was a frequent TV advertiser. DePilla checked with the station's general manager, Robert Peterson, who indicated that station policy forbade outside employment by any of its broadcasters. Bieber therefore hired an expert meteorologist elsewhere.

Defense counsel separately retained the station's lead meteorologist, John Bernier, as an expert. Bernier was a popular local television figure. When defense counsel served Bieber with Bernier's expert witness disclosure, Bieber called DePilla to tell him that Bernier was serving as an expert witness contrary to station policy.¹⁷⁷ DePilla ran to Peterson, who promptly instructed a subordinate, Matthew Zelkind, to tell Bernier that he was prohibited from serving as an expert witness. Zelkind told Bernier that he was forbidden to testify, that testifying would breach his employment contract, and that the station could fire him if he testified.¹⁷⁸ Bernier protested that he had served as an expert many times before without complaint, but Zelkind persisted. Bernier relented and told defense counsel that he could not serve as an expert in Sanderson's case.¹⁷⁹ Defense counsel called Bieber to complain and threatened to seek sanctions. In an attempt to rectify the problem and avoid sanctions, Bieber wrote Peterson to say that he had no objection to Bernier testifying, but to no avail. Boddie-Noell moved for sanctions. The court attempted to undo the damage at a hearing on the sanctions motion by encouraging the station to allow Bernier to testify without any threat of adverse employment action. The station agreed that it would not fire Bernier if he testified, but it reserved the right to take other disciplinary action, possibly including suspending him.¹⁸⁰ Not wanting to expose Bernier to discipline, Boddie-Noell decided not to insist...