Suppose, though, the expert for one party currently is on retention in another matter by the other party: plaintiff's expert is working for the defendant, but in some other unrelated case. The defendant's lawyer may fee constrained to cross-examine an expert who will presumably be testifying in that other case on his client’s behalf.
Nonetheless, in Atlantic City Associates, LLC v. Carter & Burgess Consultants, Inc., 2007 WL 63992 (D. N.J. Jan. 5, 2007), the court applied the two-part test (was there a confidential relationship; were confidences disclosed) and refused to disqualify the experts. It did not view the fact that the experts were currently retained by the client in another matter as a “decisive factor” but instead denied the motion to disqualify because there was no proof of a confidential relationship.
I hadn't seen one quite like that, and am sure I don't agree with the analysis, let alone the result.
What's your objection to the analysis?
Posted by: steve lubet | March 21, 2007 at 02:40 PM
It ignores the limitations the lawyer could face, having to cross an expert who is appearing for him at the same time in other cases. That to me is a real issue, since even if the cases are unrelated, credibility and expertise are always in issue. That doesn't mean that the expert gets DQ'd -- probably turns on timing issues (who hired who first, etc.) -- but to ignore the impact is incorrect. Applying the "reasonable belief/disclosed confidences" test to this fact pattern ignores it.
It also assumes that no loyalty owed by an expert, which troubles me a bit. I realize the cases typically say it's confidentiality, not loyalty, but something bothers me about the conclusion that an expert can flip so easily.
Mind you, I'm not saying any law supports either of my positions.
Posted by: David Hricik | March 21, 2007 at 06:31 PM
Seems to me that experts are supposed to be independent, not loyal -- especially in unrelated cases.
Posted by: Steve Lubet | March 22, 2007 at 09:30 AM
Perhaps true. But the other point remains: by denying DQ of the expert, you may have a 1.7 limitation foisted on the lawyer.
Posted by: David Hricik | March 22, 2007 at 02:42 PM