Some notes on vexing issue, which fortunately has never serious issue for me. I do recall a former partner, who with great exuberance, called every potential expert witness and then felt hurt when some of them showed up as trial witnesses on the other side. Of course, these turncoats bragged of having been approached by, and having rejected work for, the defense.
Side Switching
Opportunism or carelessness can sometimes affect expert witness retention in a way that results in “side switching.” Some lawyers may think it wonderful to snag the other side’s expert witness, who comes with a credibility credit for having been first identified by the other side. Although no rule or statute prohibits side switching, state and federal courts have exercised what they have called an inherent power to supervise and control ethical breaches by lawyers and expert witnesses.[1]
The Wang Test
Although certainly not the first case on side-switching, the decision of a federal trial court, in Wang Laboratories, Inc. v Toshiba Corp., has become a key precedent on disqualification of expert witnesses.[2] The test spelled out in the Wang case has generally been followed in federal courts,[3] as well as in state courts.[4] Given that most of the side-switching cases are quite fact sensitive, it is instructive to detail the facts that lead to an expert witness’s disqualification in this frequently cited case.
The Wang case, as far disqualification is concerned, began with a telephone call from Wang’s lawyer to a computer consultant. From Wang’s lawyer’s perspective, the call resulted in “retention.” The consultant denied that he was retained; as far as he was concerned, he agreed only to examine the patents at issue in the litigation, and to serve as an expert witness only if he were convinced of the patents’ validity.
After their telephone conference, Wang’s lawyer sent the consultant copies of the disputed patents, some materials suggesting an infringement, and the lawyer’s memorandum discussing the history of the prosecution of the patents. A short while later, the lawyer sent another memorandum, labeled “Confidential Attorney-Work Product,” which discussed potential defenses in the suit.
After providing these written materials, Wang’s lawyer had further conversations with the consultant about technical aspects of the case, and disclosed additional confidential information. The lawyer recounted that he had told the consultant that the conversations were confidential. The consultant denied receipt of any confidential information, and stated that he had not referred to the confidential memorandum because he had first to determine the validity of the patent. Working at a preliminary, investigatory stage, the consultant did not see himself as retained unless and until he concluded that the patents were valid.
Upon completed his preliminary investigation, the consultant concluded that the patents were not valid. The consultant informed Wang’s lawyer of his conclusion, and his decision to decline serving as an expert witness for Wang. Wang’s lawyer requested a short report from the consultant, who sent the requested report, which documented that he had read the patents and the “Work-Product” information.
After this interaction between Wang and the consultant, one of Wang’s adversaries, NEC approached the consultant and retained him as an expert witness. When NEC designated the consultant as an expert witness to be called at trial, Wang moved promptly to disqualify the consultant.
The Wang court recognized that if a retained expert witness receives confidential information and then switches sides, he or she is out. In Wang, both retention and receipt of confidential information were contested. The court held that both conditions were required for disqualification. Hence we have the two-prong Wang Test:
- A Confidential Relationship. This prong requires an inquiry into whether the party that claimed to have made the retention was objectively reasonable in concluding that a confidential relationship had been created between the party and the consultant. This fact-sensitive inquiry will typically turn on all the facts and circumstances surrounding the lawyer-consultant interaction, such as:
- an agreement that contemplates sharing of confidential materials,
- the lawyer’s having provided the consultant with confidential documents,
- the existence of an agreement about retention,
- the extent of the lawyer-consultant communications and meetings,
- the payment of consideration for the consultant’s work, and
- the extent of the consultant’s work and whether he or she formed any opinions about the issues in the case
- Secrets Shared. The second Wang prong inquires into whether confidential or privileged material had been shared with the consultant. The sharing of such information is evidence of a confidential relationship, but it is also required as an independent basis to satisfy the Wang court’s test. One party’s secret is another party’s commonplace, and the moving party must show that:
- the information in question was specifically related to the case,
- the information was privileged or confidential,
- the information was not evidence that would have been discovered inevitably by the adversary, independent of the consultant’s side-switching
- the information was not purely technical or otherwise in the public domain
In Wang, as in many similar cases, the lawyer and the consultant gave rather wildly inconsistent accounts of their interactions. The disputatious nature of disqualification motions is sadly all too common. The burden of proving both prongs of the Wang test is on the moving party, and in the Wang case, the court found that Wang’s lawyer had prevailed on both prongs. The consultant was disqualified.
The Wang two-prong test is the majority rule; both prongs must be satisfied. A minority of courts have disqualified expert witnesses “even if no disclosures occur,” in the name of the judicial process integrity.[5]
Public Policy Limits on Wang
Although the Wang test is sometimes characterized as a “bright-line” test, the Wang court itself was sensitive to potential abuse by lawyers who wished to silence certain expert witnesses by creating what appears to be a confidential relationship without actually sharing confidential information. After Wang, some courts moved beyond the two-part test to consider the policy implications of the requested disqualification.[6] Some of the policy considerations that have been advanced and been factored into judicial decisions whether to disqualify an expert witness include:
- protecting freedom of contract, and the consultant’s right to pursue a livelihood,
- preventing “sham” retentions to set up later disqualification, especially when there is a limited availability of qualified expert witnesses on the issues, and
- preventing prejudice to the innocent second party that approached the consultant.
Procedural Issues
Burden of Proof. The case law clearly places the burden of proving the elements of disqualification on the moving party.
Timeliness of Objections. The case law also makes clear that a party must move promptly to object to an expert witness’s conflict of interest.[7]
Not the same product, but similar product, in a later case
When the expert witness in question testified for an adversary in a different case, the analysis of confidential aspect of the shared information becomes more difficult.
Mass Tort Cases
In mass tort cases, many individual plaintiffs have typically sued a single or limited group of defendants. Such litigation can take decades to resolve, or may even become a perpetual motion litigation machine, such as asbestos personal injury cases. Such litigation creates a great need for expert witnesses on various topics, and the duration of the litigation may lead to innocent or deliberate recruitment of the other side’s former expert witnesses.
In one Fen-Phen case, one plaintiff sought to retain an expert witness previously retained by Wyeth to testify about the same diet drug (fenfluramine) in a case brought by a different plaintiff. The trial court readily concluded that there was clear overlap, with sufficient evidence that Wyeth had shared its confidential case strategies and confidential information related to the same drug.[8]
In some instances of side switching, the allegedly defective product may have been similar but not the same. Determining how much overlap makes the sharing harmful of confidential information has proceeded on a case-by-case basis. One thing, however, is clear: there is no overarching duty of loyalty. In one case, a federal court allowed expert witnesses to testify for and against the same defendant in concurrent patent litigation.[9] The court reasoned that the expert witnesses’ testimony in each case addressed only the specific, different patents in the case, and there was no overall sharing of general litigation strategy common to both cases. The testimony in each case did not overlap with the testimony in the other case. The challenge failed to show that confidences were shared that affected both cases.
One New Jersey appellate court upheld the disqualification of an expert witness who had worked for the State of New Jersey on a case that involved confidential disclosures by the State’s lawyers and its agencies, which disclosures were necessarily involved in the expert witness’s subsequent retention by the State’s adversary in a different case.[10] This decision, like most in this area, turned on a close analysis of the facts and circumstances of the retentions and consultations of the expert witness.
Practice Considerations
Obviously, lawyers must research consultants before approaching them. After making contact with a consultant, it is incumbent upon counsel to ask the consultant specifically about past and current engagements and any confidentiality limitations.[11]
Lawyers should clearly communicate their intention to create a confidential relationship that will permit candid exchange of views and information; consultants should similarly express their reservations and doubts about entering into such the proposed working relationship.[12]
In entertaining motions for disqualification, courts generally want to see confirmation of retention in writing.[13] Such writings should recite agreements on fees, billing, payment, as well as an explanation of the nature of the consulting relationship and the anticipation of shared confidences. Some commentators have suggested, imprudently in my view, that the agreement specifically prohibit side switching.
After the consultancy has begun, lawyers should clearly label their work-product communications. The 2010 amendments to the Federal Rules of Civil Procedure protect such communications from discovery in the litigation process.[14] The 2010 amendments did not, however, protect communications relating to compensation, or the lawyer’s identification of facts or data, which the expert witness then considered in forming opinions, or the lawyer’s identification of assumptions to be made by the expert witness in reaching opinions.[15] Lawyers must exercise great care in navigating the relevant state and federal rules to protect their work-product that has been shared with expert witnesses who will be disclosed as trial witnesses.
Role and Relationship Conflict
Managerial Employees
A company’s former executives or former high-level employees who had access to internal, deliberative and confidential communications, such as communications with legal counsel, are off limits to an adversary that wishes to engage the former employees as expert witnesses in litigation involving the confidences.
Treating Physicians
Treating physicians act in a role of sharing confidences and trust with their patients. Generally, courts have disallowed parties from engaging physicians as expert witnesses in litigation against the physicians’ patients. In mass tort litigation, however, courts have been willing to permit physicians to serve as expert witnesses, even when some of their patients are plaintiffs, as long as they serve as expert witnesses only in cases brought by non-patients.
Physicians frequently have important factual testimony that bears on litigation, and courts have rejected disqualification of physicians as fact witnesses. In Ngo v. Standard Tools & Equip. Co., Inc., 197 F.R.D. 263 (D. Md. 2000), the court rejected plaintiff’s attempt to disqualify his own treating physician as a defense witness. The plaintiff claimed that he and his counsel had engaged the physician as an expert witness, but the court found that no confidential relationship had been formed. The physician was allowed to testify as a fact witness for the defense. It would be extremely unlikely that an engagement of the physician as a consulting expert witness would have prevented the adverse party from calling the physician as a fact witness, in any event.
Treating Psychotherapists
The psychotherapy-patient relationship is one in which the very nature of the relationship may disqualify the psychotherapist from acting as an expert witness in support of a patient’s claim. The psychiatric profession generally recognizes that providing therapy to a patient and forensic services in support of the patient’s legal claims can adversely affect the therapeutic relationship and impair the therapist’s objectivity as an expert witness.[16] Interestingly, there is not much case law on this potential source of disqualification. In one uncelebrated case, a motion to disqualify a treating psychiatrist from serving as an expert witness was filed, but the case was dismissed on other grounds.[17]
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[1] Grant Thornton, LLP v. Fed. Deposit lnsur. Corp., 297 F. Supp. 2d 880, 881-82 (S.D. W.Va. 2004); Wang Lab., lnc. v. Toshiba Corp., 762 F. Supp. 1246, 1248 (E.D. Va. 1991) (“protect the integrity of the adversary process and promote public confidence in the fairness and integrity of the legal process”).
[2] 762 F. Supp. 1246 (E.D. Va. 1991); see also Vershuta, “New Rules of War in the Battle of the Experts: Amending the Expert Witness Disqualification Test for Conflicts of Interest,” 81 Brooklyn L. Rev. 733 (2016); Brian Hooven, “The Science Behind Expert Disqualification: A Guide,” 12 Expert Witnesses 13 (Fall 2016); Lynne Bernabei, Matthew Radler & Lauren R. S. Mendonsa “Ethical Duties and Standards in Disqualifying, Retaining, and Communicating with Expert Witnesses,” 43 Brief 1 (2013); Maya M. Eckstein & Paul Nyffeler, “The Expert of My Enemy Is My Expert: Conflicts of Interests Amongst Expert Witnesses,” 17 Litig. News 1 (Summer 2012); Douglas R. Widin & Francis J. Maloney III, “Conflicts of Interest and Litigation Experts,” chap. 4, in Cynthia H. Cwik, ed., Scientific Evidence Review: Current Issues at the Crossroads of Science, Technology and the Law, Monograph No. 7 (2006); Cathy Altman & Dena Denooyer Stroh, “Keeping It Confidential: Disqualifying Experts,” Commerical & Bus. Litig. J. 10 (Spring 2005); Kendall Coffey, “Inherent judicial Authority and the Expert Disqualification Doctrine,” 56 Fla. L. Rev. 195 (2004); Douglas R. Richmond, “Regulating Expert Testimony,” 62 Mo. L. Rev. 485 (1997).
[3] See, e.g., Greene, Tweed of Delaware, Inc. v. DuPont Dow Elastomers, LLC, 202 F.R.D. 426, 429 (E.D. Pa. 2001); In re Orthopedic Bone Screw Prod. Liab. Litig., 1995 U.S. Dist. LEXIS 21526 at *8 (E.D. Pa. 1995); Hewlett-Packard Co. v. EMC Corp., 330 F. Supp. 2d 1087, 1092-093 (N.D. Cal. 2004); Crenshawv. Mony Life Ins. Co., 318 F. Supp. 2d 1015, 1026 (S.D. Cal. 2004); Syngenta Seeds, Inc. v. Monsanto Co., 2004 WL 2223252 at *2, No. 02-1331-SLR (D. Del Sept. 27, 2004); Mays v. Reassure America Life Ins. Co., 293 F. Supp. 2d 954, 957 (E.D. Ark. 2003); Cordy v. Sherwin-Williams Co., 156 F.RD. 575, 580 (D.N.J. 1994); English Feedlot, Inc. v. Norden Lab., Inc., 833 F. Supp. 1498, 1452 (D. Colo. 1993).
[4] See, e.g., Mitchell v. Wilmore, 981 P.2d 172, 175 (Colo. 1999); Formosa Plastics Corp., U.S.A. v. Kajima Internat’l, Inc., 2004 WL 2534207 at *2 (Tex. Ct. App. Nov. 10, 2004), rev. denied, 15 S.W.3d 289 (Tex. 2004); Turner v. Thiel, 553 S.E.2d 765, 768 (Va. 2001).
[5] City of Springfield v. RHI Holdings, Inc., 111 F. Supp. 2d 71, 74 (D. Mass. 2000).
[6] See, e.g., Cordy v. Sherwin-Williams Co., 156 F.R.D. 575 (D.N.J. 1994).
[7] See Popular, Inc. v. Popular Staffing Services. Corp., 239 F. Supp. 2d 150, 153 (D. Puerto Rico 2003).
[8] Righetti v. Wyeth, Inc., No. 07-20144, 2009 WL 1886131 (E.D. Pa. 2009). See also Rhodes v. E.I. Du Pont De Nemours & Co., 558 F. Supp. 2d 660 (2008).
[9] Bone Care Internat’l, LLC v. Pentech Pharms, Inc., 2009 WL 249386, at *2–3 (N.D. Ill. Feb. 2, 2009).
[10] Conforti & Eisele, Inc. v. Div. of Bldg. & Constr., 405 A.2d 487 (N.J. Super. Ct., L. Div. 1979) (noting that the court’s “decision should in no way be read to indicate that an expert who has traditionally been hired by one attorney in a particular type of litigation would be precluded from offering his services to that particular attorney’s adversary in an unrelated matter”).
[11] English Feedlot, Inc. v. Norden Lab., Inc., 833 F. Supp. 1498, 1505 (D. Colo. 1993) (“[C)ounsel seeking to retain a consultant should inquire specifically whether the consultant’s past employment presents any confidentiality roblems.”).
[12] Wang Lab., lnc. v. Toshiba Corp., 762 F. Supp. 1246, 1246, 1248-49 (E.D. Va. 1991) (noting that fairness require that lawyers bear a burden to communicate to consultants that they desire and intend to create a confidential relationship, and that consultants express their doubts unequivocally and decline any disclosures until their doubts are resolved).
[13] See, e.g., id. at 1249-50; Syngenta Seeds, Inc. v. Monsanto Co., 2004 WL 2223252 at *2 (D. Del. Sept. 27, 2004); See also Hewlett-Packard Co. v. EMC Corp., 330 F. Supp. 2d 1087, 1091 (N.D. Cal. 2004) (discussing the practical importance of written retention agreements).
[14] Fed. R. Civ. P. 26(b)(4)(B), (C).
[15] Fed. R. Civ. P. 26(b)(4)(C)(i)-(iii).
[16] Psychiatrists’ Program, “Can a Treating Psychiatrist Double As Expert Witness for Same Patient?” 39 Psychiatric News at 16 (Aug. 20, 2004); “Assuming Conflicting Roles Can Be Risky,” 36 Psychiatric News at 25 (Oct. 19, 2001); see also Larry H. Strasburger, Thomas G. Gutheil & Archie Brodsky, “On Wearing Two Hats: Role Conflict in Serving as Both Psychotherapist and Expert Witness,” 154 Am. J. Psychiatry 448 (1997).
[17] Conant v. Tru-Test Manufacturing Co., N.J. Law Div., Burlington Cty. No. L-03214-97 (Oct. 25, 2002).
