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Expert Witness Conflicts: How to Avoid the Disqualification of your Expert

Anjelica Cappellino, J.D.

Written by
— Updated on April 27, 2022

Expert Witness Conflicts: How to Avoid the Disqualification of your Expert

 

The process of retaining, preparing, and strategizing with an expert can be stressful, especially during the chaos of a trial. However, all of that preparation is of no value unless your expert’s testimony is admitted into evidence. If a conflict of interest exists with your experts, then there is a chance that they will be disqualified and their testimony will be excluded. It can seem daunting to review an expert’s entire history to ensure that no conflicts of interest exist. But by keeping these things in mind, you can potentially avoid a catastrophe at trial.

How Does the Court Resolve a Conflict?

Generally, conflicts of interest most often arise in terms of confidentiality issues and the expert’s duty of loyalty. A potential conflict of interest may exist if the expert has been formerly employed by or previously hired as an expert for the opposing side. The main concern for the court is whether the expert’s affiliations with the adversary provided him with confidential information, and if so, whether that can prejudice the party.

Surprisingly, there is scant case law regarding expert disqualification, as it is often seen as a drastic last measure. Nonetheless, courts throughout the country generally follow a three-prong analysis when deciding whether an expert should be disqualified from testifying based on his previous relationship with the opposing party. The Court asks – 1) Was it reasonable for the opposing party to believe a confidential relationship existed with the expert?; 2) Was confidential or privileged information disclosed by the opposing party to the expert?; and 3) What is the public interest in admitting (or excluding) the expert’s testimony?

When deciding whether it was reasonable for the opposing party to believe a confidential relationship existed with the expert, the courts consider the details surrounding the relationship, such as the parties’ frequency of contact, any formal retainer agreements, the amount of work performed and work product generated, and whether the expert planned on testifying as a witness.

Typically, an expert will not be disqualified if he only briefly met with the opposing party, was not retained, and was not provided any confidential information relevant to the case. Likewise, it is important to note that a confidential relationship alone is not sufficient to disqualify the witness; the witness must have actually obtained confidential information. As to the second prong, confidential or privileged information includes matters covered by attorney-client privilege and/or attorney work-product protections. Other matters that are considered confidential are the opposing party’s trial strategy, the case’s strengths and weaknesses, and any anticipated defenses. Information that is “purely technical” or would have otherwise been discoverable during the course of litigation is not considered confidential. In analyzing any public interest concerns, the courts consider issues such as:

1) the prejudice that may occur to the parties if the expert is or is not qualified;

2) the appearance of a conflict of interest;

3) whether a new expert can be retained and the burden it will cause the party;

4) whether both parties have access to experts that possess the necessary knowledge and skill required to testify; and

5) the danger that unscrupulous attorneys and clients may hire experts solely to prevent them from representing the opposing party.

Generally, a motion to disqualify an expert is more likely to be granted when it involves an expert that switched parties during the litigation. For example, in In re Diet Drugs Products Liability Litigation, No. 07-20144, 2009 WL 1886131 (E.D. Pa. 2009), defense counsel for two drug manufacturers retained an expert for the case, which resulted in the expert’s formal, exclusive engagement and meetings between counsel and the expert concerning trial strategy. However, the expert was then engaged by plaintiff and planned to testify against the defendants in the plaintiff’s products liability suit. The Court disqualified the witness, finding that a relationship existed between the expert and defendants during which the expert gained confidential information related to the litigation.

In contrast, in Allstate Insurance Co. v. Electrolux Home Products, Inc., Id. 27. 840 F. Supp. 2d 1072, 1084 (N.D. Ill. 2012), the Court held that disqualification of an expert was not warranted when the expert had previously testified for a third party in another proceeding that was deemed adverse to the moving party. Although the expert had access to confidential information, the Court held that there was no prior direct relationship between the expert and the party seeking the disqualification. The Court admitted his testimony under the condition that no reference to made to the confidential information of the prior case.

Interestingly, an attorney may also be disqualified due to an expert witness conflict. Courts have disqualified the attorney of record when the lawyer purposefully retains or communicates with experts currently or formerly associated with the opposing party.

How to Avoid Conflicts of Interest

Ideally, an expert should have no connection to the opposing party. However, dependent upon the expert’s profession and the size of the jurisdiction, it is not always possible. Before retaining an expert, it is important to conduct a thorough background check on the witness’ case history and affiliations. An expert witness agency can be of particular help in this regard. Expert witness agencies use databases and search tools not available to the public to screen their experts and implement strict compliance procedures. Obtaining an expert through these means lessens the chance of the unknown.

A comprehensive retainer agreement is also vital to protecting the case against a conflict of interest. The agreement should outline the work performed, the materials the expert will receive, and whether the expert will testify at trial so that the parameters of the relationship can be defined. A confidentiality clause should also be included, stating that the expert will be obtaining confidential information during the course of the relationship and it should not be disseminated during any future proceedings.

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