VI. That's Not What You Thought He Was Going to Say: "side-switching" and Designated but Withdrawn Experts

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

VI. That's Not What You Thought He Was Going to Say: "Side-Switching" and Designated but Withdrawn Experts

When grappling with expert witness conflicts, courts have not always used the term "switching sides" consistently or precisely. The use of loose or imprecise language in this area is troublesome because the term can reasonably be applied to materially different situations. One type of "side switching" occurs when an expert who has been retained by one party then begins working for the other. Or, perhaps an expert who previously testified for a corporate defendant in product liability litigation begins serving as an expert witness for plaintiffs who are suing the corporation in new cases involving the same product or similar products. In some instances, courts faced with side-switching expert do not apply the standard two-part test to determine whether the expert should be disqualified, but instead disqualify the expert under a bright-line rule.²³⁰ The bright-line approach obviously has significant consequences for a party that stands to see its expert disqualified.

But there are other scenarios sometimes referred to by courts as "side-switching" that require different analysis. Expert witnesses who are retained to testify at trial and who are so disclosed may ultimately offer opinions favoring the opponent. What if new information provided to the expert around the time of, or during, a deposition changes the expert's mind? Perhaps the expert is a doctor who examines the plaintiff for the defendant and learns things during the examination that were not apparent from reading the medical records. Alternatively, an opponent shares information with an expert during a deposition that the party retaining the expert withheld for some reason. The issue then becomes whether the sponsoring party can withdraw its designation and foreclose the expert's testimony or whether the delighted opponent can subpoena the expert to testify at trial, effectively compelling the expert to "switch sides." If the opponent calls the expert at trial, can counsel elicit testimony from the expert that he was originally retained by the first party? An expert's admission that he was originally engaged by the opposing party is potentially devastating.

There is a well-developed split of authority providing three tests for addressing the issue of when, if ever, a party will be allowed to commandeer an adversary's expert witness. These are the entitlement test, the balancing test, and the exceptional circumstances test.

A. The Entitlement Test

The entitlement test only applies in situations in which one party has submitted to an independent medical examination (requested by an adversary under Federal Rule of Civil Procedure 35 or a state equivalent) and then seeks to call the examining healthcare provider.²³¹ The theory behind this approach is that a plaintiff who has been forced by an adversary to endure a medical examination and corresponding "invasion of his person" is thereby "entitled to make use of such information as results from the examination."²³² The rationale behind this test limits its application to situations where the inquiring party has been forced to undergo an examination; thus, it does not apply to other contexts in which one party seeks testimony from an adversary's expert. Even within the context of Rule 35 examinations, the entitlement test has not been widely adopted.²³³

The essential rationale for this test is arguably infirm from a defense perspective. That is, a plaintiff forced to undergo a Rule 35 examination must do so only because he filed a lawsuit seeking damages for some form of personal injury. Thus, the personal invasion that justifies the use of this test was voluntarily assumed. There is accordingly no reason to grant the plaintiff an evidentiary advantage over the defendant. To be sure, the plaintiff may suffer inconvenience or embarrassment on account of a Rule 35 examination, but lawyers who defend personal injury litigation might argue that, when viewed in this context, the entitlement test makes little sense. Plaintiffs' lawyers will obviously disagree with this rationale on the basis that the plaintiff never volunteered to be injured and that resort to litigation to obtain redress does not lessen any personal invasion worked by a Rule 35 examination. Neither side is likely to persuade the other.

The entitlement test might be better justified by reference to the role that experts are supposed to play in the adversary system. As a matter of policy, if expert witnesses truly are objective sources of information rather than advocates, then either side should be equally free to introduce the testimony of an expert who performs an independent medical examination.²³⁴ Prohibiting a plaintiff from eliciting expert testimony from a doctor who examined him solely on the basis that it was the defendant or defense counsel who demanded the examination is difficult to square with the examiner's role as an independent servant of the court.

B. The Discretionary or Balancing Standard

The discretionary or balancing standard weighs the discovering party's and court's interests in receiving the expert's testimony against the potential for prejudice to the party who hired the expert. House v. Combined Insurance Co. of America²³⁵ is the leading case in point. The House court applied this standard in concluding that it was fair for the plaintiff to call a defense expert at trial.

In House, Jody House sued Combined, her former employer, for sexual harassment.²³⁶ Because House claimed that she suffered emotional distress as a result of the alleged harassment, Combined retained a psychiatrist, Dr. Michael Taylor, to independently examine her pursuant to Federal Rule of Civil Procedure 35. Combined designated Dr. Taylor as an expert to testify at trial, and he examined House more than a month later. ²³⁷ House then noticed Dr. Taylor's deposition and filed a motion to obtain her examination report.²³⁸

Combined moved to quash Dr. Taylor's deposition and sought a protective order regarding any related discovery.²³⁹ Although it did not withdraw Dr. Taylor's formal expert designation, Combined dropped him from its final witness list and told the court that it did not intend to call him at trial. The magistrate handling the case ordered Combined to produce Dr. Taylor's report, but also held that House could not depose him.²⁴⁰ Combined elevated its opposition to the district judge by filing a motion in limine. Combined argued that House's failure to provide satisfactory expert disclosures should preclude her from deposing Dr. Taylor, although a more likely reason for Combined's resistance was that Dr. Taylor harbored opinions that were not favorable to the defense.²⁴¹

The district court noted the three possible standards to apply when determining whether a party should have access to an adversary's former expert: (1) the "exceptional circumstances" standard in then-Federal Rule of Civil Procedure 26(b)(4)(B), which dealt with consulting experts;²⁴² ( 2) a "'discretionary' or 'balancing' standard," which weighs the "interests of the [discovering] party and the court against the potential for prejudice to the party who hired the expert";²⁴³ and (3) the entitlement standard discussed above. The court rejected Combined's invitation to adopt the exceptional circumstances standard applicable to the discovery of opinions held by consulting experts. The court stated:

[W]hether the witness has been designated as an expert expected to testify at trial pursuant to [Federal Rule of Civil Procedure] 26(b)(4)(A) is a very significant difference from the situation in which an expert has merely been consulted by a party, but never designated as likely to testify at trial. Parties should be encouraged to consult experts to formulate their own cases, to discard those experts for any reason, and to place them beyond the reach of an opposing party, if they have never indicated an intention to use the expert at trial. Such a consulted-but-never-designated expert might properly be considered to fall under the work product doctrine that protects matters prepared in anticipation of litigation. . . . For this reason also, the ability of an opposing party to call a never-designated expert at trial should depend upon a showing of "extraordinary circumstances."

Once an expert is designated, however, the expert is recognized as presenting part of the common body of discoverable, and generally admissible, information and testimony available to all...