It may occur rarely, but the implications are immense. Consider the situation of hiring an expert to review a case file. She declines to testify at trial but subsequently gets hired by the opposing counsel as their expert. As disheartening as that prospect seems, there is some support in Ohio to seek disqualification of the expert witness at trial and protect the confidential nature of the earlier review.
The Seventh District in Mullins v. Comprehensive Pediatric & Adult Med., Inc, 7th Dist. No. 07 MA 144, 2009-Ohio-1310, affirmed the disqualification of a defendant’s expert because plaintiff’s counsel previously provided confidential communications to that expert witness. The court held that a trial court should grant a motion to disqualify an expert witness, if the moving party can demonstrate that “the adversary had a confidential relationship with the expert; and the adversary disclosed confidential information to the expert that is relevant to the current litigation.” According to the court, the purpose of the disqualification is “to protect the various privileges that may be breached if an expert is permitted to change sides during litigation, and second, to preserve the public confidence in the fairness and integrity of the judicial proceedings.”
In Mullins, the court was concerned with the moving party’s evidence demonstrating that the attorney shared work product and theories of liability with the expert that could be used to her disadvantage at trial should the expert be allowed to testify on behalf of the opposing party. While not dispositive, the court also noted that the non-moving party was not prejudiced by the disqualification because trial was continued for the purpose of finding a new expert.
The Seventh District adopted this approach from Hewlett-Packard Co. v. EMC Corp., 330 F. Supp. 2d 1087, 1093 (N.D.Cal. 2004) which cautioned that disqualification as a remedy should be exercised only in situations where confidential information was disclosed to the expert before the switch. Although not referenced in Mullins, the EMC Corp. court provided several non-exhaustive factors useful in demonstrating whether confidential information was disclosed to warrant the disqualification. Nevertheless, both cases remain a good starting place should the beginning scenario ever materialize in practice.
