May an expert witness switch sides in a lawsuit? Unlike the lawyers
in a case, no rule expressly stops an expert from "hopping the
fence." After all, the expert's allegiance is to the truth, not
to any one party, right?
But
just because an expert may switch sides doesn't necessarily make it
the right thing to do. Switching sides can have unpleasant consequences.
For one, the expert could be disqualified. For another, the lawyer
could be sanctioned. And if either of those happens, the case could
be kaput.
Yet,
judging by the reported cases and the comments of lawyers, it happens
with surprising frequency. The typical scenario runs something like
this: One side – we'll
say plaintiff – retains expert. Expert arrives at opinion unfavorable
to plaintiff. Plaintiff discharges expert. Defendant snags expert.
For
the courts that have confronted this scenario, concerns about preserving
confidentiality and privilege often lead them to keep side-switching
experts from taking the witness stand. And if a court finds that a
lawyer inappropriately lured an expert from one side to another, it
could slap the lawyer with severe sanctions.
Needless to say, lawyers
share this concern for preserving confidentiality. But some also see
an opportunity when an expert switches sides. They see it as an opening
to question credibility – not of the expert,
but of the lawyer who discharged the expert and the integrity of that
lawyer's underlying case.
"Experts are required to give an honest professional assessment
opinion on issues and not consider the party that hired them when providing
their result," explains Yolanda Marsili, an employment lawyer with
Freeman, Borthwick & Marsili in Los Angeles. "When they do this
the process works as it should. When one side that hired that expert
initially chooses to ignore the opinion given and shop for a new expert,
that is where ethical considerations come into play – not as to
the experts, rather to the lawyers involved.
"Attempting to force a result by dropping viable experts allows the other
party to pick up that expert to effectuate the right result and thwart the game
of litigation that does not belong in our courts," Marsili says.
Still, in addition to examining why the first party discharged the expert, lawyers
should also consider the expert's motive in switching sides. As lawyer Richard
Durfee of the Arizona firm Durfee & Phelps explains, he sees two kinds of
experts who will switch sides.
The first he describes as the honest expert, the expert who cannot be bought. "When
they discover that the side that hired them is advocating something contrary
to their view, they will 'switch' sides but remain consistent in the positions
they take."
The other is the expert who lacks scruples. "Their opinion is for sale to
the highest bidder. They will advocate on behalf of whichever party is paying
their check. If switching sides is in their best interest, they will. They are
consistent in looking out for themselves first, making the truth a casualty."
These cases come up with enough regularity that courts have set standards for
deciding whether to disqualify the side-switching expert. Most apply the two-part
test set out by the 5th U.S. Circuit Court of Appeals in a 1996 decision, Koch
Refining Co. v. Jennifer L. Boudreaux MV, 85 F.3d 1178, a tangled case
in which a tugboat owner and a barge owner were at odds over which was at
fault for the barge's 1987 sinking.
The appeal
to the 5th Circuit focused on the trial court's decision to disqualify an expert
witness, Richard Vinas. The barge's insurer, Continental Insurance Company, originally
retained Vinas in connection with insurance-coverage claims brought against it
by the barge's owners. Continental paid him some $8,000, received two detailed
written reports of his opinions, and listed him as a "will call" expert
for trial.
However, well
before trial, Continental settled the coverage claims and effectively switched
sides in the litigation, joining with the barge owners in their claims against
the tug owners. Later, Continental released Vinas as an expert.
Meanwhile, the tug owners approached Vinas and ultimately retained him in August
1993, just a month ahead of the trial. When the barge owners found out, they
asked the judge to disqualify him, which the judge did.
As the 5th Circuit noted in its opinion, the case was unusual because it was
the party that retained the expert that switched sides, not the expert himself.
Still, the court based its reasoning on other side-switching cases and established
a two-part test for disqualification.
"First, was it objectively reasonable for the first party who claims to
have retained the expert to conclude that a confidential relationship existed?
Second, was any confidential or privileged information disclosed by the first
party to the expert? … Only if the answers to both questions are affirmative
should the witness be disqualified."
In Continental's case, it had a reasonable expectation of confidentiality with
Vinas and Vinas did in fact receive confidential information from Continental's
counsel pertaining to his theory of the case and his tactics for trial, the court
concluded. Thus, it affirmed his exclusion.
Another danger in these cases is a sanction on the attorney who hires the
expert away. A decision that illustrates this is Erickson v. Newmar Corp.,
87 F.3d 298 (9th Cir. 1996).
This was a pro se defective-product case brought by Donald C. Erickson against
the manufacturer of his motor home. After a trial judge dismissed Erickson's
case, he appealed, arguing that the defense counsel had tampered with his
metal expert, Dr. Steven Grimm.
While preparing to depose Dr. Grimm in his law office, defense counsel Leslie
Combs had asked him if he would accept $100 an hour to evaluate a lock that
was an important piece of evidence in another case. After the deposition
was over, Combs took Dr. Grimm alone into another room to show him photos
and video of the lock.
Pro se though he was, Erickson realized this was not right. The next day,
he filed a "Motion for Judgment against Newmar for Tampering with a
Material Witness." He also fired Dr. Grimm, believing that he could
no longer trust him. Soon after, another of Erickson's experts resigned,
explaining that he did not want to be involved in a case where "the
attorneys [were] bothering the witnesses."
In denying Erickson's motion, the district court treated this as a side-switching
case. It reasoned that Erickson was effectively seeking to disqualify his
own expert so that the court would enter judgment against the defendant as
a sanction.
But the 9th Circuit said the case was not about side-switching, it was about
legal ethics. "The present case is about an attorney who offered a monetary
inducement to an expert witness prior to the expert giving his testimony."
Defense lawyer Combs "entirely circumvented the discovery rules" by
achieving "unsupervised access to plaintiff's expert," the court
said. This conduct interfered with Erickson's ability to present his case
and was "particularly
disturbing because Combs took advantage of the fact that Erickson was acting
pro se."
In the end, the defense lawyer's conduct earned the plaintiff a second chance
at trial. But the case also suggests one final danger when experts switch
sides – that
outsiders may attribute fault to the expert and be less likely to hire the
expert in future cases.
As one expert who asked not to be identified explained, "If an expert
switches sides, it could be an uphill climb to re-establish credibility.
It would have to mean that the other side released the expert and they may
have had a good reason to do so."
So, go ahead, switch sides. But do
so at your peril.
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