By Ronald E. Malen, Esq.
Long & Levit, San Francisco
An expert witness must be conversant with fundamental ethical principles that can be enforced by courts or result in liability claims. [To a]n expert witness, who is not a lawyer, may not owe an obligation of loyalty [to his client] that continues beyond the retention, there is a risk that the possession of confidential information could result in disqualification or civil liability. The expert should maintain a record of prior retentions, identifying both the retaining party and that person's lawyer. Before accepting a retention, the expert witness should determine whether that person had received information that could be considered as having been provided in confidence. In particular, expert witnesses in legal and accounting fields have to be especially conscientious.
Courts have asserted the inherent power to disqualify an expert witness.1 An expert witness should be aware of the risk of conflict of interest. A lawyer-expert is restricted by fiduciary obligations that can attach to a prior attorney-client relationship. A lawyer who was consulted by the plaintiff concerning a trademark could not later [act] as an expert witness for the defendant concerning the same matter.2
Disqualifications of expert witnesses has occurred in a variety of contexts. Expert witnesses, unless [acting as] lawyers, do not have the ethical obligations of lawyers for loyalty.3 Experts are not advocates, and their duty to be objective and fair in expressing their opinions is inconsistent with the duty of loyalty owed by a lawyer.4 There is no procedural impropriety in retaining an expert previously consulted by an adverse party (doctor retained as expert witness in medical malpractice action).5
Some Courts have expressed a policy of judicial reluctance to disqualify expert witnesses.6
Experts do have a duty to preserve confidential information.7 Judges have said that courts have the inherent power to disqualify expert witnesses to preserve the public confidence in the integrity of the judicial proceedings.8 In English Feedlot, the court said that the standard was two-fold. First is whether the client had an objective reasonable expectation that the communications would be kept confidential and, second, whether confidential information was disclosed. The first prong was determined by the client's expectation. There the client specifically instructed him to label the information "Privileged and Confidential - Work Product" to prevent the claimant from acquiring the information if litigations resulted. The court found, however, that the information disclosed was not confidential.9
That duty to preserve confidences can be augmented by attorney-client considerations where the expert was retained by a lawyer for the complaining party. Then, in a substantially related matter, there are protectable attorney-client communications. That situation was the subject of Conforti.10The court enjoined an engineering firm from being used as an expert by the plaintiff, general contractor. The state was defendant and the engineering firm [Conforti] had previously been retained by the state's attorney during which time it received confidential information. Where an attorney has been involved in the retention, and confidences were not disclosed, a retention in general or concerning another matter did not suffice for disqualification. Unlike the lawyer, the duty of loyalty is not imposed upon an expert.11 The inquiry in Paul was whether there was a reasonable basis for believing that a confidential relationship was created, and whether there were confidential developments in that relationship. An important point is that the protection of confidences concerns the clients disclosures. That principle does not apply to the expert's opinions.12
A major California law firm was disqualified for hiring an expert witness who had been retained by the adverse party.13 The expert had received confidences but the party decided not to continue the engagement. The law firm, though denying confidences were received, admitted retaining the accountants on the very same subject matter, damages. The entire firm was disqualified because the subject of more narrow relief, pertaining to the tainted lawyers, was not requested.
In other situations, the courts have found a direct fiduciary obligations of confidentiality. Experts hired by a defendant sealant manufacturer, sued for allegedly defective chemical formulation, were disqualified.14 The engineer had previously been retained as a consulting engineer for the window manufacturer concerning matters that were substantially related. The confidences also concerned an understanding of the plaintiff's business operations, and decision making processes.
A physician who treated the plaintiff as a blind child could not be an expert witness for the defendant physician.15 The court observed that the doctor owes a patient a duty of confidentiality where he was not called as the treating physician but as a paid expert witness.
A federal District of Columbia judge offered the following inquires:16
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 part to the [expert]?
Although the accounting expert met with the moving party's counsel, there was no retention nor disclosure of confidential information. Providing fundamental, technical information did not suffice. The rules of vicarious disqualification did not apply. Thus, an expert hired by one party who had the same employer as an expert hired by the moving party would not be disqualified solely because of that relationship.17 The protection applies to client confidences, not to the expert's findings, opinions and advice. Thus, disqualification is inappropriate without showing the disclosure of confidences and the risk of a serious disclosure of confidences.
Experts often are hired as prospective witnesses and as consultants. There are practical reasons why such a retention may be inappropriate for a witness intended to provide trial testimony. First, the consultant-expert is subject to discovery regarding discussions with litigation counsel that may reveal prejudicial communications regarding strategy or weaknesses in the merits of a case.18Second, activities as a consultant may extend to assisting in the defense or prosecution of the case. Such activities can imperil credibility by creating an apparent bias since the witnesses' role then becomes that of an advocate. The position of an advocate is inconsistent with the theoretical neutrality of a witness who seeks to offer unbiased testimony. Thus, an expert witness should either function solely in that role, or should perform functions that do not partake of "advocacy." Such functions involve participating in efforts or strategies designed to maximize the client's prospect of recovering or the amount of recovery. The expert who appears to have over-extended to assist the client is likely to be vulnerable regarding the witness' fundamental opinions.
Just as parties in litigation often believe that adverse counsel is responsible for the law suit, they sometimes view the adverse expert witness from the same perspective. Frequently, they find testimony of an expert witness to be offensive, insulting or down right defamatory. Expert witnesses have been sued by the persons they were retained to testify against. The wrong alleged is defamation. That wrong, however, can be included with a myriad of legal theories, such as defamation, negligence, misrepresentation, malicious prosecution or intentional infliction of emotional distress.
In virtually all jurisdictions, the expert witness has been entitled to the defense of privilege, an absolute privilege that protects them from liability, usually resulting in dismissal of the complaint. The so-called "litigation" or "defamation" privilege derives from fundamental principles to protect statements and other publications made in the course of litigation. The privilege is essential to foster the public policy of maintaining access to the courts. The privilege is "absolute", that is the publisher may act with actual malice and ill-will. E.g. Malicious prosecution by psychologist for participating in disciplinary hearing - statutory immunity;19defamation in custody dispute - qualified privilege;20 physician sued for defamation21; defamation action by physician for pre-deposition statements;22 immunity [extends to] basis of testimony23; [against expert accountant witness for abuse of process, emotional distress claiming expert had manufactured false evidence]24; [by doctor defendant in a malpractice case against plaintiff's medical expert for statements prior to deposition and deposition for misrepresentation, and intentional infliction of emotional distress]25; [by winning defendant against plaintiff's expert in malpractice case for libel and slander]26; physicians who testified regarding plaintiff's competency at a competency hearing.27
Since the defamation privilege concerns statements or publications, it usually does not apply to malicious prosecution claims, although not all courts have so recognized. A 1993 Nebraska decision concerned a suit against an expert witness for malicious prosecution.28 The plaintiff claimed that the expert witness was the moving cause of the initiation of the lawsuit and its continuation. The appellate court upheld a summary judgment for the expert on the basis of witness immunity. The court expressly declined to make a distinction between the expert's role as an expert witness and consultant.
A Georgia lawyer-expert witness was sued under the state's abusive litigation statute.29 The statute applied to "any person who takes an active part in the initiation, continuation or procurement of a civil proceeding . . ." The court held [in dismissing the action] that although the expert's opinion was essential to the unsuccessful legal malpractice claim, it was "passive" rather than "active" participation.
The defamation privilege, however, is not a defense to an action by the client for negligence. In the California Mattco Forge case30, the client sued its accounting expert, which was retained as a consultant and expert witness on damages in its action against General Electric for lost profits. The court accused the client of having created fraudulent documents, and of destroying evidence, imposed sanctions of $1.4 million. The client claimed that the accounting firm was responsible for the sanctions. The court held that the [litigation privilege does not shield a party's own witness from an action by the party arising from the expert's negligence and breach of contract]. The court also disagreed with and distinguished the Washington decision of Bruce v. Byrne-Stevens & Associates Engineers, Inc.31 which concerned an action by the clients against an engineering firm they hired to testify at trial. The California court observed that there the expert had testified at trial; whereas in Mattco Forge the case had not yet proceeded to trial.
The same conclusion was reached by the Missouri Supreme Court in Murphy.32 The client charged that numerous errors in providing expert testimony at an arbitration resulted in not receiving additional compensation. The court rejected the expert' defense of witness immunity, citing Mattco Forge. Said the court, "We do not believe that immunity was meant to or should apply to bar a suit against a privately retained professional who negligently provides litigation support services."33 [A Texas] court stated that the privilege would not bar a claim for negligent misdiagnosis as professional negligence concerning a competency hearing.34
An area of liability exposure concerns advice regarding whether to pursue a claim. [In a California action,]35 a medical consultant was sued for negligently advising a patient's attorney that he did not believe that the physician had committed malpractice. The physician was Dr. Nork, who was already the subject of numerous medical malpractice actions, but this patient's lawsuit was untimely. At a lawsuit against the expert, even Dr. Nork admitted that his treatment was below the standard of care. The judge granted an nonsuit for the expert. The court of appeals, however, disagreed, concluding that there was evidence to support the cause of action for negligence.
In a New Jersey decision,36 an expert witness was sued for "malpractice" for failing to appear at trial. As a consequence, the client claimed that he had to accept an inadequate settlement. The expert claimed, however, that the plaintiff's injury was because his lawyer unnecessarily accepted an inadequate settlement.
Ed. Comment: In simplified terms, generally an expert is immune to suits by the opposing party. However, some states are not allowing the defense of privilege in suits by the party who retained the expert. This area of law is still evolving. Needless to say, the expert may be immune but may still have to undergo the expense of defending himself.
References
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