Assume the following scenario. An attorney representing a party in a lawsuit challenging the probate of a contested will consults with a medical expert, describing the facts of the case, sharing his mental impressions and discussing trial strategies. The client decides not to hire the expert. The same doctor then consults with the attorney representing the adverse party in the same case, is retained by the adverse party and produces an expert’s report for trial. Should this expert and the law firm representing the adverse party be disqualified?
Our firm recently encountered this exact scenario in a case pending in the Superior Court of New Jersey, Bergen County, in which the trial judge disqualified a psychiatrist from serving as the defense’s medical expert. The Court determined that the psychiatrist was a “consulting expert” under New Jersey case law and applicable Court Rule despite the fact that our client did not retain him. Therefore, the Court held that the psychiatrist cannot serve as the adverse party’s expert absent a showing of exceptional circumstances which the trial judge found did not exist. The trial court declined to disqualify the law firm, however.
1. Legal Basis to Disqualify Expert Who Previously Consulted With An Adversary
The Court has the inherent power to disqualify expert witnesses to “protect the integrity of the adversary process, protect privileges that otherwise may be breached, and promote confidence in the legal system.” In re Pelvic Mesh/Gynecare Litig., 426 N.J. Super. 167, 197 (App. Div. 2012). New Jersey courts have applied the same rules to barring experts as they do to attorneys. See Conforti & Eisele, Inc. v. Division of Building and Construction, 170 N.J. Super. 64 (Law Div. 1979). In Graham v. Gielchinsky, 126 N.J. 261 (1991), the Supreme Court held that in the absence of exceptional circumstances that would have allowed discovery of that expert’s identity and opinion under New Jersey Court Rule 4:10-2(d)(3), courts could not allow opinion testimony by an expert originally consulted by an adversary. See also Stigliano by Stigliano v. Connaught Lab., Inc., 140 N.J. 305, 313 (1995) (in the absence of ‘exceptional circumstances,’ courts should not allow the opinion testimony of an expert originally consulted by an adversary).
In a similar case, the Federal District Court, applying New Jersey law, disqualified both the expert and the law firm. In Cordy v. Sherwin-Williams Co., 156 F.R.D. 575 (D.N.J. 1994), an expert was initially retained by plaintiffs. Shortly after he was retained by plaintiffs, the expert “switched sides” and went to work for defendants. The District Court found two bases to disqualify experts who had a prior relationship with another party, the attorney-client privilege and fundamental fairness. The District Court then set forth a three-factor test to determine whether to disqualify said expert: (i) whether it was objectively reasonable for the first party who retained the expert to believe that a confidential relationship existed; (ii) whether that party disclosed any confidential information to the expert; and (iii) the balance of the competing policy objectives in determining expert disqualification.
In an analogous case decided on March 24, 2010, the Appellate Division held that an expert witness that was a member of the plaintiff’s treating physician’s practice could not act as an expert witness for the defense. See Carchidi v. Iavicoli, 412 N.J. Super. 374 (App. Div. 2010). Specifically, in Carchidi, the court expressed concern that a jury would give extra credit and weight to testimony of a member of same medical practice. The court found the prejudicial effect is substantial. The court was concerned that jurors would undoubtedly give extra credit and weight to their testimony. As the Court in Carchidi stated “Jurors might well wonder why they should be expected to find that the cause of plaintiff’s injuries is that asserted by plaintiff’s experts when senior member of plaintiffs chosen treatment team say otherwise.”
2. Legal Basis to Disqualify Counsel Who Have Retained An Expert That Previously Consulted With An Adversary
Courts have disqualified attorneys who hired their adversary’s former expert witness after the adversary divulged confidential information to that expert. See Cordy v. Sherwin Williams Co., supra. In Cordy, the Court citing MMR/Wallace Power & Industrial, Inc. v Thames, 764 F. Supp. 712 (D. Conn. 1991), found that there is a “presumption that confidences were in fact shared.” The presumption exists because there is an inherent difficulty in determining at some later point whether it happened. Id. This is because R. 4:17-4(e) provides, in relevant part:
Except as herein provided, the communication between counsel and expert deemed trial preparation materials pursuant to R. 4:10-2(d)(1) may not be inquired into.
In Cordy, the court was dealing with the Federal Rules of Civil Procedure which do not contain such a prohibition. Compare Fed. R. Civ. Pro. 26 (b) (4) which has no such limitation. Notably, the Cordy Court quoted the following passage:
Even if, as defendant maintains, no confidential information was actually disclosed, Forstadt’s alliance with Willett creates a “nagging suspicion that [defendant’s] preparation and presentation had already been unfairly benefited.”
In disqualification situations, any doubt is to be resolved in favor of disqualification. Id. at 584. While the “appearance of impropriety doctrine” is no longer viable in and of itself, the commentators have suggested that the reasoning applied to decisions in which conflicts have been found is still applicable in certain situations. See Michels, N.J. Attorney Ethics, Section 18:2 “Relevance of Appearance Decisions and Opinion, (Gann 2009).
Before consulting with a potential expert witness it is imperative to question the expert about whether he/she had any prior discussions with any other parties named in the lawsuit. If a lawyer or client fails to ask this most important question at the inception, and for whatever reason the expert fails to disclose his or her prior consultation with another lawyer involved in the same case, then the expert could be disqualified prior to trial under New Jersey Court Rule 4:10-2(d)(3), the Graham case and its progenies. Absent exceptional circumstances, trial judges have the discretion to bar an expert from testifying at trial.