Interesting new Expert DQ case

There's a bunch of law that basically says that experts can be disqualified only if they actually received confidential information from the party seeking to disqualify them that is relevant to the pending dispute.  Those cases are a dime a dozen, and the rule is settled that there must be proof of a prior objectively reasonable confidential relationship along with proof of actual disclosure of confidences that are pertinent to the matter in which the expert is serving adversely.

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.

Comments

[steve lubet]

What's your objection to the analysis?

[David Hricik]

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.

[Steve Lubet]

Seems to me that experts are supposed to be independent, not loyal -- especially in unrelated cases.

[David Hricik]

Perhaps true. But the other point remains: by denying DQ of the expert, you may have a 1.7 limitation foisted on the lawyer.