animal Law Office
of
Elizabeth L. Elliott, JD, LLM
Copyrighted 2009
ETHICS AND EXPERT WITNESSES
I. INTRODUCTION
There is very little caselaw
that examines the Rules of Professional Conduct (RPCs)
and the use of expert witnesses. Most of our
guidance on the ethical rules and expert witnesses
come from cases involving discovery issues. The
underlying reasoning is similar to the themes
running throughout the RPCs – confidentiality,
conflicts of interest, and candor to the tribunal.
THE RULES OF ETHICS AND CR 26(b)
II. CONFIDENTIALITY RPC 1.6
There are two types of expert
witnesses – a testifying expert and a consulting
expert. A testifying expert is one who has been
identified by a party as giving expert testimony. A
consulting expert is one, in general, who has been
retained for advice, but not to give testimony at
trial.
The distinction between a
testifying expert and a consulting expert is
critical when it comes to preserving client
confidences. Disclosures made to a testifying
witness are not protected communications.
Inappropriate revelation of confidential information
to such individuals may violate RPC 1.6.
It may also result in a waiver attorney-client
privilege and work product protection. In contrast,
revelations to a consulting expert are generally
protected.
a) Testifying
Expert Witnesses
CR 26(b) governs the discovery
of facts known to, and opinions held by, experts.
15A Karl Tegland & Douglas J. Ende, Washington
Practice: Washington Handbook on Civil Procedure §
39.4 (2008-2009). Discovery of facts or opinions
held by a testifying expert is relatively
unrestricted. If confidential information is
disclosed to a testifying expert, that information
is generally discoverable by an opposing party.
CR 26(b)(5)(A)(i) – Discovery
is appropriate for experts who will be called to
testify at trial.
(5) Trial Preparation: Experts. Discovery of facts
known and opinions held by experts, otherwise
discoverable under the provisions of subsection
(b)(1) of this rule and acquired or developed in
anticipation of litigation or for trial, may be
obtained only as follows:
(A)(i) A party may through interrogatories
require any other party to identify each person whom
the other party expects to call as an expert witness
at trial, to state the subject matter on which the
expert is expected to testify, to state the
substance of the facts and opinions to which the
expert is expected to testify and a summary of the
grounds for each opinion . . . . (ii) A party may .
. . depose each person whom any other party expects
to call as an expert witness at trial.
Attorneys should be
cautious about their communications with testifying
experts. Direct communication between a client and a
testifying expert should be monitored very closely
or not done at all. An attorney should also be wary
of communications between a testifying expert and a
consulting expert. If a testifying expert basis his
or her opinion on information obtained from a
consulting expert, that information, is most likely
discoverable by the opposing party.
b) Consulting Expert Witnesses and Work
Product
Discovery of consulting expert witnesses is
restricted by CR 26(b)(5)(B). Consulting experts are
treated as a member of a party’s team and their
opinions are work product. Tegland, supra,
sect. 39.4. Generally, disclosures to a consulting
expert are protected. Communication of confidential
information to a consulting expert may be deemed
available to opposing counsel under certain
conditions.
i. Access to the Opposition’s
Consulting Expert
Exceptional Circumstances
Discovery of a consulting expert may be obtained as
provided in CR 35(b) or when there are exceptional
circumstances. A party must show that he/she cannot
obtain the information needed by consulting his/her
own expert witness.
Mothershead v. Adams
In
Mothershead v. Adam,
32 Wn. App 325, 330 (1982),
the court considered the
plaintiff’s motion to compel the deposition of the
defendant’s consulting expert witness.
Mothershead
involved a slip-and-fall accident that occurred on
property belonging to the defendant, William Adams.
The plaintiff, Diane Mothershead, was examined by a
physician at the request of Adams. A copy of the
report was then sent to Mothershead. In return, as
required under FRCP 35(b), Mothershead then
sent reports from her doctors to the defendant. She
also noted the deposition of the physician retained
by Adams. Subsequently, Adams obtained a protective
order precluding the deposition. He then hired
another medical examiner.
On
appeal, Mothershead argued that she should have been
permitted to depose the physicians hired by Adams to
preserve his testimony for trial.
The
court’s analysis centered on the interplay between
the FRCP 35(b) and FRCP 26(b)(4).
In
denying Mothershead’s motion to compel the
deposition of the defendant’s physician, the court
stated that FRCP 26(b)(4)(b) permits discovery of a
consulting experts under “two circumstances: (1)
where allowed under FRCP 35, or (2) where
exceptional circumstances are shown.” Mothershead
at 330. The court found that (1) the physician
discharged by Adams was not a testifying expert, and
(2) that Mothershead did not establish that
exceptional circumstances warranted the deposition.
Mothershead failed to show exceptional circumstances
because she did not need the testimony of the
physician; she had access to his report and had had
her own experts. Mothershead at 332.
Crenna v. Ford Motor
Co.
In Crenna v. Ford Motor Co.,
12 Wn. App. 824 (1975), Division 1 of the Court
of Appeals, expanded the discovery protections
granted under CR 26(b)(5) to prevent the calling of
consulting witnesses during trial. Crenna v. Ford
Motor Co., 12 Wn. App. at 828.
The plaintiffs in Crenna
brought an action against Ford Motor Company for
damages that they suffered when they lost control of
their Ford truck and hit a barricade. In response to
interrogatories, the plaintiffs stated that they had
consulted an expert to examine the axel of the
truck, but that they had not decided who, if anyone,
would be called as an expert at trial. Nine months
later, shortly before trial, the plaintiffs informed
Ford that an expert was examining the axel and that
Ford could review the expert’s report and
interrogate him. Ford refused the offer. It then
inquired if the plaintiffs would be calling an
expert witness. The plaintiffs stated that they were
still uncertain as to whether they would be calling
a testifying expert witness.
Defense counsel subpoenaed the
witness that the plaintiffs’ named in their
responses to interrogatories. The plaintiffs
successfully quashed the subpoena. At trial, the
defense again attempted to call the plaintiff’s
consulting expert. The trial judge asked the defense
if they had not had an opportunity to examine the
axel. To which Ford responded, that they had
examined it, but did not have the chance to
re-examine it after the plaintiffs’ second expert
viewed it. The trial judge refused Ford’s request to
call the consulting expert. On appeal, Ford argued
that they should have been permitted to examine the
consulting witness.
The appellate court found that
because Ford did not attempt to depose the Crennas’
expert and had the opportunity to examine the car
part; it failed to
demonstrate that there were exceptional
circumstances warranting the testimony of the
witness, thus the trial court properly denied access
to the expert.
ii.
Compelling Identification of Opposing Party's
Consulting Expert Witnesses
Detwiler v. Gall
In
Detwiler v. Gall, Landau & Young Co, 42. Wn.
App. 567 (1986), the Washington State Court of
Appeals held that a party may not be compelled to
disclose the identities of their consulting experts
where no exceptional circumstances are demonstrated.
Detwiler v. Gall, Landau & Young Co, 42 Wn.
App. at 572.
Detwiler based its ruling on factors considered in
Ager v. Jane C. Stormont Hosp. & Training Sch.
For Nurses, 622 F.2d 496 (10th Cir,
1980):
1. it would result in a
decrease in the number of candid opinions
available.;
2. experts could be
contacted or their records obtained; and
3. experts might be
compelled to testify at trial
4. a party would be able to call his
opponent to the stand and ask if certain experts
were retained but not called as witnesses, thereby
leaving the jury to believe that unfavorable facts
or opinions are being suppressed;
Detwiler
at 571, quoting
Ager v. Jane C. Stormont
Hosp. & Training Sch. For Nurses,
622 F.2d at 503.
Pimentel v. Roundup
Co.
A party may waive the right to
prevent the admission of a consulting expert’s
deposition at trial.
Pimentel v. Roundup Co., 32 Wn. App.
647 (1982). In
Pimentel, the defendant permitted the
deposition of its expert witness for any purpose
allowed under the civil rules. Ultimately, the
defendant chose not to call its expert and the
plaintiff attempted to enter the deposition into the
court record. The trial court denied the request
because the expert was a consulting expert and was
not called by the defense.
The Court of Appeals held that
a party waives its right to prevent the admission of
the deposition at trial by
stipulating that the deposition of its expert can be
used for all purposes allowed by the civil
rules.
III. CONFLICT OF
INTEREST AND DISQUALIFICATION
An attorney may not represent a client
if there is a conflict of interest. Additionally, an
attorney my not switch sides and represent an
opposing party during the representation. (See RPC
1.1, 1.7, 1.8, 1.9 and 1.10). Although, expert
witnesses are not held to the same ethical rules as
lawyers, an expert may not “switch sides” if the
expert has obtained confidential information
pertaining to a party.
Courts have the power to
disqualify experts and counsel. (See, In Re
Firestorm, 129 Wn. 2d 130, (1991); and
Campbell Indus. v. M/V Gemini, 619 F.2d 24, 27
(9th Cir. 1980)). When a conflict of
interest develops, whether it is between experts
hired by the parties, or between counsel and
opposing experts, courts may disqualify the
individuals involved to protect the integrity and
fairness of the proceedings. Durflinger v.
Artiles, 727 F.2d 888, 891 (10th Cir.
1984). Courts will first consider if a less severe
sanction would be more appropriate. (See, In Re
Firestorm, 129 Wn. 2d 130 (1991). See, also
Washington State Physicians Ins. Exch. And Ass’n v
Fisons Corp., 122 Wn.2d 299, 355-356 (1993)
(“The purpose of sanctions orders are to deter, to
punish, to compensate and to educate.”)
Disqualification is an extreme measure that courts
are reluctant to use unless there is a “legitimate
claim of prejudice to the party seeking
disqualification.”Proctor & Gamble, Co. v Haugen,
184 F.R.D. 410, 414 (D. Utah, 1999).
a)
Disqualification of Counsel Due to Exparte Contact
with Opposing Party’s
Expert
There is no express ethical
prohibition against contact with an opposing party’s
expert witness. (ABA Comm. On Ethics and Prof. Resp.,
Formal Op. 378 (1993)). An ABA Ethics Opinion
determined that exparte communications
circumvent the discovery rules and thus violate an
attorney’s duty to obey the obligations to the
tribunal. ABA Comm. On Ethics and Prof
Responsibility, Formal Op. 93-378 (1993).
In Re Firestorm
In Re Firestorm, 129 Wn.
2d 130 (1991) was the first case in Washington to
address the issue of exparte contact with an
opposing party’s expert witness.
In Firestorm, the
plaintiff filed a lawsuit for damages sustained in a
series of wildfires. The plaintiff’s attorneys were
contacted by an expert that had been hired by
counsel representing several utility companies.
These companies were potential defendants in the
lawsuit, but had not yet been named as defendants.
The expert identified himself as a consulting expert
for the potential defendants. He had been hired to
investigate the possible role of the utility
companies in the fires. The expert was concerned
that information that he had gained during his
investigation would be concealed by the utility
companies. He shared that information with the
plaintiff’s attorneys. The following day, he also
gave pictures and notes that he had taken to the
plaintiff’s attorneys.
After the utility companies
were named as defendants, defense counsel moved to
have the attorneys for Firestorm disqualified. The
trial court determined that the plaintiff’s
attorneys had violated CR 26(b)(5) and disqualified
them.
On appeal, the Washington State
Supreme Court deemed that the exparte contacts
violated CR 26(b)(5), but it refused to disqualify
the attorneys. It stated that “[t]he drastic remedy
of disqualification arises when counsel has access
to privileged information of an opposing party.”
Firestorm at 140. Since the expert at issue (1)
did not have access to privileged information; (2)
was not an essential employee of the potential
defendant; and (3) did not have any knowledge of the
utility company’s litigation strategy, the Court
determined that disqualification of plaintiff’s
counsel was not necessary. Firestorm at
140-141.
Erickson v Newmar Corp.
Erickson v. Newmar Corp. 87 F.3d
298 (9th Cir. 1996), was a case about an
attorney’s monetary inducement to an expert witness
of an opposing party before the witness gave
testimony. In Erickson v. Newmar, the court
sanctioned the defense counsel for his exparte
communication with the expert. The court found that
the attorney’s violation of the discovery rules
pertaining to expert witnesses: (1) breached an
attorney’s duty to obey the obligations of the
tribunal, and (2) was conduct that was prejudicial
to the administration of justice.
Erickson at 300 -301.
The plaintiff in Erickson purchased a
motor home manufactured by Newmar Corporation. He
later filed an action against Newmar claiming that
the motor home was defective. The defendant noted
the deposition of two of the plaintiff’s expert
witnesses. Prior to the depositions, defense counsel
asked one of the experts if he would examine a lock
which was a piece of evidence in an unrelated case.
Defense counsel offered to pay the expert $100 per
hour. After the deposition, defense counsel and the
expert went into a separate room to examine the
lock.
The plaintiff fired the expert
the following day. Additionally, the plaintiff’s
other expert resigned because he did not want to be
part of a case where there were problems between
counsel and experts. The plaintiff went to trial
without any expert witnesses and lost.
On appeal, the pro se plaintiff claimed
that defense counsel had “tampered” with his expert
witness. The court agreed. It referenced ABA Formal
Op. 378 in support of its conclusion:
“[a]lthough the ABA Model Rules do not specifically
prohibit exparte contacts with an opposing party’s
expert witness, an attorney who engages in such
contacts may violate the duty to obey the
obligations of the tribunal” Erickson at 302
Additionally, the court found that the
exparte contact prejudiced the plaintiff’s ability
to present his case because he could not use the
testimony of either of his expert witnesses. Id.
b)
Disqualification of an Expert Witness Due to
“Switching Sides”
An expert witness who switches side is
one who:
1. has been retained by one
party to testify at trial who then gives testimony
in
favor
of the other party, or
2. was initially retained by one
party, dismissed, and employed by the opposing
party in the same or related litigation. Erickson
v. Newmar Corp. at 300.
Has the Expert Witness
Been “Retained”?
As a preliminary matter, one
must determine if the expert has actually been
retained by a party. A formal written contract is
advisable, but most attorneys do not use them. The
court in Paul v Rawlings 123 F.R.D. 271, 279
(S.D. Ohio 1988) stated that:
“there is no "right" way for an attorney to
retain an expert for purposes of litigation. While a
formal, written contract establishing both the
existence of the relationship and prohibiting the
disclosure of any information gained by the expert
during the course of the relationship would be an
ideal way to eliminate questions of the sort which
have arisen in this case, neither lawyers nor
experts always, or even often, go to such lengths.)
Paul v Rawlings 123 F.R.D. at 279.
In Proctor & Gamble, Co. v
Haugen, 184 F.R.D. 410 (D. Utah 1999), the
court held that “mere payment for consulting time
does not make an expert per se a ‘retained’
expert.” Proctor & Gamble, Co. v Haugen, 184
F.R.D. at 413. It stated that the entire
relationship should be examined before concluding
that an expert has been retained by a party.
Proctor at 413. The court recommended that “Each
party to the communication or consultive
relationship must understand the obligation of
confidentiality which should normally be spelled
clearly, precisely, and, if possible, in writing.”
Proctor at 411.
Should the Expert Witness
Be Disqualified?
Paul v Rawlings
Paul v Rawlings 123 F.R.D. 271
(S.D. Ohio 1988) is the seminal case on the
disqualification of a side switching expert. In
Paul, a baseball player suffered a severe brain
injury when he was hit by a baseball while wearing a
baseball helmet manufactured by the defendant. The
plaintiff sued Rawlings claiming that the helmet was
poorly designed. Counsel for Rawlings had several
discussions with an expert witness from January of
1987 until April of 1987. The majority of their
conversations pertained to the possibility that the
expert would be retained to set up a testing
laboratory to test helmets designed by the
defendant. He would also provide the defendant with
the results of his tests. The expert did not review
any documents pertaining to the case. In July of
1987, Rawling’s counsel sent a letter to the expert
expressing his continued desire to have the expert
set of a laboratory for testing. Apparently, there
was no other communication after that time.
In September of 1987, plaintiff’s
counsel contacted the same expert witness. The
expert was given details of the case and he agreed
to act as an expert witness for the plaintiffs. The
plaintiff then sent an extensive packet of
information along with a retainer to the expert. The
expert witness prepared a report on behalf of the
plaintiff.
The court applied a three part test to
determine whether disqualification was appropriate:
1. Did Rawlings and the expert enter a
relationship which gave rise to an objectively
reasonable expectation on Rawling’s part that it
could, without risk, impart confidential information
to the expert?
2. Did Rawlings take advantage of its
opportunity to disclose confidential information to
the expert?, and
3. Was there a showing that the expert had
used or may use such information to Rawling’s
disadvantage?
Paul v Rawlings 123 F.R.D. at 277.
The court held that (1)
Rawlings had entered a confidential relationship,
but (2) Rawlings did not take advantage of the
opportunity to disclose confidential information,
and that (3) Rawlings was not prejudiced by allowing
the expert to testify on the plaintiff’s behalf.
Current Two-Part Standard
for Disqualification
Courts now generally apply a
two-part test to determine whether disqualification
of an expert is warranted. This test is based on
part one and part two of the Rawling’s standard.
1. Was it objectively reasonable for the
party requesting disqualification to believe that a
confidential relationship existed?
2. Did the party desiring disqualification
disclose confidential information to the expert?
If the moving party can show
that the answers to both question are affirmative,
the court will disqualify the expert or take other
actions.
Cordy v Sherwin-Williams
Co.
Cordy v Sherwin-Williams Co,
156 F.R.D. 575 (D.N.J. 1994), was a
negligence suit arising from a bicycle accident that
occurred on the property owner's railroad track.
Plaintiff’s counsel consulted with an expert
witness. The attorney gave materials to the expert
and explained the plaintiff’s theory of the case.
The expert witness and the attorney entered a
retainer agreement. The expert was paid $3,000.
However, the expert witness did not prepare a
written report and eventually returned the retainer.
Approximately three months later, defense counsel
contacted the same expert witness. The witness
informed the defense attorney that he had previously
been consulted by the plaintiff. Even so, the expert
witness entered retainer agreement with the defense
and gave a report on their behalf. The plaintiff
filed a motion to disqualify the expert.
The court applied the two part
test derived from Rawlings. It determined
that plaintiff’s counsel reasonably assumed that a
confidential relationship existed and that the
expert witness had been given confidential
information by the plaintiff. Therefore, the witness
was disqualified.
Public Policy
Considerations
Some court have analyzed public
policy issues to determine if an expert should be
disqualified such as: (1) fundamental fairness and
prejudice to the parties. Conforti &Eisele, Inc,
v Div. Of Bldg. & Constr., 405 A.2d 487, 491-492
(N.J. Super. 1979) (Expert initially retained by the
moving party could not switch sides during a
multi-phase litigation after being exposed to the
moving party’s files and litigation strategies due
to fundamental fairness.), and (2) the public
interest in having an expert witness testify.
Koch Ref. Co. v. Jennifer L. Boudreux M/V, 85
F.3d 1178, 1182 (5th Cir. 1996).
Disqualification Based on
“Fairness”
Campbell Indus v M/V
Gemini
In 1971, Campbell Industries
constructed a fishing ship for M/V Gemini. In 1972
and 1973, Gemini brought the ship to Campbell for
repairs. Gemini did not pay the charges so Campbell
sued for payment. Gemini counterclaimed that the
ship was poorly constructed.
Campbell hired an expert to examine the ship and
give testimony at trial. One month prior to trial,
Gemini moved the court for an order permitting it to
depose Campbell’s expert. A declaration submitted by
Gemini’s counsel stated that he had had several
exparte communications with Campbell’s expert. The
expert desired to testify on behalf of Gemini. The
court denied the request and excluded the expert
from testifying.
The appellate court upheld the
decision of the trial court because it did not
prejudice Gemini's case; It was able to call one or
more of its three experts, who examined the ship at
the same time as Campbell’s expert.
Testimony by Expert Witnesses Who
Have Switched Sides
Although courts may permit an expert to testify who
has switched sides, they will generally not allow
any reference to the expert’s initial retention by
the other party. Peterson v. Willie, 81 F.3d
1033, 1037-1038 (11th Cir. 1996)
(permitted plaintiff’s testifying expert witness to
give testimony on behalf of defense, but prohibited
reference to prior employment by plaintiff as it was
too prejudicial.)
IV. FEES FOR EXPERT WITNESSES (RPC
3.4(B)
According to RPC 3.4(b), “A lawyer shall
not (falsify evidence, counsel or assist a witness
to testify falsely, or offer an inducement to a
witness that is prohibited by law;). Therefore, an
attorney may not offer compensation to a fact
witness other than that permitted by statute. The
Rules of Professional Conduct do not include a
specific prohibition against paying an expert
witness a contingency fee, but the comments make it
clear that doing so is improper. The underlying
concern is that the expert would be less objective
than if he or she were paid a an hourly or flat fee.
As a consequence, the lawyer could be interpreted as
presenting false testimony in violation of RPC
3.4(b) or not be candid to a tribunal.
V. CONCLUSION
Attorneys must consider the issues of
confidentiality and conflicts when hiring and
working with expert witness. Expert witnesses serve
an important role in the judicial system. They
educate lawyers, judges and juries. Without them it
would be difficult to determine if certain cases had
merit or the value of the damages sustained by a
plaintiff.
RPC 1.6
Confidentiality:
(a) A lawyer
shall not reveal information relating to the
representation of a client unless the client
gives informed consent, the disclosure is
impliedly authorized in order to carry out the
representation or the disclosure is permitted by
paragraph (b).
Acting
Competently to Preserve Confidentiality
Comment [16] A
lawyer must act competently to safeguard
information relating to the representation of a
client against inadvertent or unauthorized
disclosure by the lawyer or other persons who
are participating in the representation of the
client or who are subject to the lawyer's
supervision. See Rules 1.1, 5.1 and 5.3.
CR 26(b)(5)(B)
– Permits discovery of consulting experts when
there are exceptional circumstances or as
provided in CR 35(b)
(B)
(Discovery Regarding Consulting Experts.)
A party may discover facts known or opinions
held by an expert who is not expected to be
called as a witness at trial, only as provided
in rule 35(b) [report of examining physician or
psychologist] or upon a showing of exceptional
circumstances under which it is impracticable
for the party seeking discovery to obtain facts
or opinions on the same subject by other means.
FRCP 35
provides:
"(a) Order for
Examination. When the mental or physical
condition … of a party … is in controversy, the
court … may order the party to submit to a
physical or mental examination…
"(b) Report
of Examining Physician.
"(1) If
requested by the party against whom an order is
made under Rule 35(a) or the person examined,
the party causing the examination to be made
shall deliver to him a copy of a detailed
written report of the examining physician
setting out his finding, including results of
all tests made, diagnosis and conclusions,
together with like reports of all earlier
examinations of the same condition. After
delivery the party causing the examination shall
be entitled upon request to receive from the
party against whom the order is made a like
report of any examination, previously or
thereafter made, of the same condition, unless,
in the case of a report of examination of a
person not a party, the party shows that he is
unable to obtain it. The court on motion may
make an order against a party requiring delivery
of a report on such terms as are just, and if a
physician fails or refuses to make a report the
court may exclude his testimony if offered at
the trial.
"(2) By
requesting and obtaining a report of the
examination so ordered or by taking the
deposition of the examiner, the party examined
waives any privilege he may have in that action
or any other involving the same controversy
regarding the testimony of every other person
who has examined or may thereafter examine him
in respect of the same mental or physical
condition.
"(3) This
subdivision applies to examinations made by
agreement of the parties, unless the agreement
expressly provides otherwise. This
subdivision does not preclude discovery of a
report of an examining physician or the taking
of a deposition of the physician in accordance
with the provisions of any other rule."
“A lawyer
shall not: (c) knowingly disobey an obligation
under the rules of a tribunal
except for an
open refusal based on an assertion that no valid
obligation exists.”
8.4
Misconduct
“It is
professional misconduct for a lawyer to:
(d) engage in
conduct that which is prejudicial to the
administration of justice;
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