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May 15, 2013

Working More Effectively with Expert Witnesses

 

When 392 in-house attorneys were recently asked the question, “Do you expect the number of legal disputes your company will face in the next year to increase, decrease, or stay the same?” 92 percent of them responded that they anticipate the same amount of disputes or more, which is up from 89 percent in 2011, according to Fulbright & Jaworski’s  9th Annual Litigation Trends Survey Report. In the context of today’s cost-sensitive business environment and increasing number of legal disputes, controlling all aspects of litigation, including expert costs, is imperative. 

It goes without saying that identifying and hiring an expert with the proper background and experience will frequently provide the most cost-effective outcome over the life of a case. This article provides valuable tips for working more efficiently with expert witnesses and controlling their costs after selection.

Early Retention
Getting an expert involved early in the case—earlier than you might feel necessary—allows the expert to provide value in an orderly and efficient way. Last-minute retentions and the resultant fire drills are never efficient.

Early retention of an expert also allows the expert to provide guidance in different aspects of the case including discovery, liability determinations, as well as damages.

In particular, early expert retention in the discovery phase of litigation frequently contributes to efficiency in all phases of litigation. Spending time up-front with your expert on what discovery is needed frequently streamlines the discovery process by refining and focusing discovery requests to the issues upon which the expert will opine.

Explore Alternative Billing Arrangements
Instead of simply paying an “hourly rate x hours worked” for the expert and each team member, consider proposing alternative billing arrangements.

Request Plans and Budgets, Then Hold the Expert Accountable

Plan, budget, monitor, control—repeat. Parse tasks into definable phases and work steps and ask the expert to provide a budget and explanation for each phase. A simplistic four-phase plan and budget may include the following activities:  discovery, analysis and report writing, depositions, and trial. 

Even if you have a great plan and an acceptable budget, be prepared to add additional budget items for unanticipated events such as motion responses.

Request the Use of Lower-Cost People Where Appropriate       
Junior members of the expert’s team can provide value by attending client meetings and opposing expert or other key fact witness depositions.  Utilizing lower billing rate team members will reduce cost.  Similar to many law firms, the second chair team members are as versed on the case issues as the testifier.

In certain situations, nominating client personnel to the consultant’s team can promote efficiency for the expert and thereby reduce costs.  Client accounting staff, for instance, can gather and summarize data into formats defined and outlined by the expert without increasing the client’s out-of-pocket costs. 

Keep in close contact with the expert
Regular check-ins with the expert will do more than simply keep the lines of communication open. Discuss what they are doing in relation to your activities to determine if there are duplicative efforts or opportunities to share non-work product activities or materials. The current Federal Rules broadly protect from discovery attorney communications with experts, which allows for much freer communication. Check your local rules to determine how to best use this concept in state court settings.

Summary
Efficiency, started during the discovery process and maintained through close contact with the expert during the engagement, will frequently provide the most cost-effective solution for working with an expert witness. Similarly, the lawyer who is tasked with managing the expert will likely be more satisfied with their relationship with the expert and the ultimate testimony and opinions provided.

Keywords: litigation, expert witnesses, costs, testimony, discovery, early retention, rates, testimony, legal disputes, efficiency, budget

–William B. Metzdorff, Plante Moran, Chicago, IL

May 15, 2013

Pennsylvania May Limit Communications Privileges with Experts

 

In Pennsylvania state court, the discussions between counsel and a testifying expert witness are generally protected by the work product doctrine as set forth in the Pennsylvania Rules of Civil Procedure. A case now pending before the Supreme Court of Pennsylvania, Barrick v. Holy Spirit Hosp. of the Sisters of the Christian Charity, could change that understanding in Pennsylvania. 

The underlying case arose out of a personal injury lawsuit in which the plaintiff, Carl Barrick, suffered spinal injuries when a seat on which he was sitting at the Holy Spirit Hospital collapsed.  Counsel for defendants served Dr. Thomas Green, one of plaintiff’s treating physicians, with a subpoena pursuant to Pa. R.C.P. 4009.21 requesting a complete copy of all documents relating to Barrick. Green was also designated to testify as an expert witness on the Barricks’ behalf.  Green’s office produced all medical records, but declined to produce any records that had not been created for treatment purposes, including communications between Green and the Barricks’ counsel. The trial court issued an order compelling production of the withheld communications, concluding that when an expert is called to “advance a plaintiff’s case in chief and the nature of the expert’s testimony may have been materially impacted by correspondence with counsel, such correspondence is discoverable.” 

A panel of the superior court initially affirmed the trial court order. But, after a nine-judge en banc panel reheard the case, the superior court, in an 8-1 decision, reversed the trial court order.  The majority concluded that “a discovery request for the content of any correspondence between an opposing party’s attorney and the expert witness retained by that party falls outside the express language of Pa.R.C.P. 4003.5(a)(1).” This conclusion was also grounded on Pa.R.C.P 4003.3, which states, in part, “[t]he discovery shall not include disclosure of the mental impressions of a party’s attorney or his or her conclusions, opinions, memoranda, notes or summaries, legal research or legal theories.” 

Judge Mary Jane Bowes of the Superior Court filed a concurring and dissenting opinion, agreeing the subpoena violated Rule 4003.5, but dissenting to the majority’s work product analysis. In Judge Bowes’ view “blanket protection of all correspondence between the attorney and his expert[,]” including all properly discoverable material included therein,” fails to serve “both the letter and the spirit” of Rule 4003.3.

The obvious next question is whether the Pennsylvania Supreme Court will follow suit with the majority or reverse course? The answer is difficult to predict given the continual flux in Pennsylvania courts over the past few years. But, rest assured, the Supreme Court’s anticipated ruling will shape future boundaries of discoverability under Pa.R.C.P. 4003.3 and 4003.5, and may be instructive on the scope of a party’s ability to subpoena records from the opposing party’s treating and expert physician. 

Keywords: litigation, expert witnesses, communication, work product doctrine, privileges, Pennsylvania Rules of Civil Procedure, discovery request, Rule 4003.5, Rule 4003.3

–Christina D. Riggs, Saul Ewing LLP, Philadelphia, PA

April 8, 2013

Seventh Circuit Affirms Order Striking Expert Report

 

In a dispute regarding the breach of a commercial lease for failure to pay rent and illegal assignment, a Seventh Circuit panel affirmed the Northern District of Indiana’s opinion and order striking that portion of plaintiff’s expert report concerning calculation of damages and the fair market value of the rental property.   Lock Realty Corp. IX v. U.S. Health, LP, Nos. 11-3477 et al. Cons. (February 12, 2013).

In Lock, plaintiff nursing home lessor sought damages from its lessee and the lessee’s assignee, including the value of future rent payments due for the remaining duration of the lease term after plaintiff had repossessed the property.  The district court determined that damages should be calculated, as provided for in the lease, by subtracting the lease’s fair market value (for the remaining lease period) from the discounted present value of the remaining net rent owed by defendants under the lease.  To calculate the fair market value, the district court suggested that one of three valuation methods (or a combination thereof) would be permissible under Indiana law: (1) the comparable sales method, (2) the income method, and (3) the cost method.

But plaintiff’s expert failed to follow any of these approaches in determining the fair market value of the future rent owed under the lease.  Instead, plaintiff’s expert relied upon evidence of two rental offers: (1) an email from one defendant to plaintiff offering to renegotiate the lease at a reduced monthly rent, and (2) an email from a third party to plaintiff offering to lease the facility at an annual rate.  Plaintiff’s expert corroborated this evidence by calculating the fair market value of the rent applying an Indiana statutory formula used in compensating Medicaid providers in nursing homes.  Based upon the two rental offers and the Medicaid formula, plaintiff’s expert determined that the present value of the remaining rent owed by defendants was $14,937,182, while the fair market present value of the rent owed for the same remaining period was only $8,845,030, resulting in damages of $6,092,153.

The Seventh Circuit affirmed the district court’s holding that plaintiff’s expert’s methodology failed to meet the Daubert standard.  First, plaintiff’s expert failed to employ the accepted valuation methods—she did not review comparable lease values and did not perform a cost or income approach analysis.  Second, plaintiff’s expert’s reliance upon attempts by defendants or other parties to renegotiate the lease proved nothing because plaintiff flatly rejected those offers and no evidence existed to show that those rejected offers represented fair rental value.  Likewise, plaintiff’s expert also failed to demonstrate why the Indiana statute regarding Medicaid providers should apply in these circumstances where private parties had negotiated a lease.  Accordingly, the Seventh Circuit held that the district court did not abuse its discretion in striking plaintiff’s expert report.

In addition to that holding, the Seventh Circuit also affirmed the district court’s denial of plaintiff’s motion to supplement the record with additional evidence including audit rates on the fair market value of the rental property, because that proposed evidence was submitted six months after discovery closed and was therefore untimely.  Consequently, plaintiff could not prove its claimed damages for future rental payments.

Keywords: litigation, expert witnesses, fair market value, rental property, damages, Daubert, valuation methods

–Joseph D. Keller, commercial litigation attorney, Chicago, IL

April 3, 2013

Supreme Court Overturns Class Certification in Comcast Case

The United States Supreme Court issued an opinion on March 27, 2013 overturning a class certification in a Comcast Corporation antitrust litigation. The vote was 5-4 to reverse the district court’s and Third Circuit Court of Appeals’ prior class certification, specific to Federal Rules of Civil Procedure: Rule 23(b)(3) (“… questions of law or fact common to class members predominate over any questions affecting only individual members … ”).  There was a dissenting opinion criticizing the majority, including whether the Court addressed the appropriate question, or whether it should have even heard the case at all.

This article is not a legal analysis, and is written by a damages expert.  The basic question the Court was addressing is whether a class was appropriately certified, and centered on a damages expert’s model for estimating damages. This case was about allegations that Comcast violated antitrust law by entering into swap agreements with other cable providers to gain a majority market share in the Philadelphia area.  Allegedly, as an example, Comcast sold some if its business in other markets (Los Angeles and Palm Beach) to a competitor, in exchange for the competitor’s business in Philadelphia, thereby gaining market share in Philadelphia and creating anticompetitive prices, and injuring class members.

The plaintiffs had four different claims, and its damages expert estimated damages for the class considering all four claims. However, the district court allowed only one of the claims (over-builders are other providers elected not to enter the market due to Comcast’s majority market share).  The District Court held (and it was not challenged) that the predominance requirement of Rule 23(b)(3) required (i) that the existence of individual injury resulting from the alleged antitrust violation was capable of proof at trial through evidence that was common to the class rather than individual to its members; and (ii) that the damages resulting from that injury were measurable on a class-wide basis through use of a common methodology.  During testimony, the damages expert stated that his model, and estimated damages of $875 million, was not specific to the over-builder claim, but accounted for all four claims. The question was whether the damages model met the predominance requirement of Rule 23(b)(3).

The majority opinion and dissenting opinion both address this question. The majority opinion quotes the Federal Judicial Center’s Reference Manual on Scientific Evidence, stating that “[t]he first step in a damages is the translation of the legal theory of the harmful event into an analysis of the economic impact of that event.”  The majority opinion stated “[t]here is no question that the model failed to measure damages resulting from the particular antitrust injury … ”  Conversely, the dissenting opinion noted that since “Comcast argued that the three other theories, i.e., the three rejected theories, had no impact on prices.  If Comcast was right, then the damages…must have stemmed exclusively from conduct that deterred new entry, say from ‘over-builders’.”  The dissenting opinion further notes that the damages “… model does not purport to show precisely how Comcast’s conduct led to higher prices in the Philadelphia area.  It simply shows that Comcast’s conduct brought about higher prices. And it measures the amount of subsequent harm.”

In addition to addressing Rule 23(b)(3), the opinions touch on damages considerations in general, including the often debated issues of reasonable certainty and loss causation. On one hand, the opinions could suggest that litigants may need to make clear and direct linkage of the specific claims to the specific damages calculation.  In other words, if numerous claims are sought in the same action (fraud, fiduciary duty, breach of contract, unfair business practices, etc.), one damages methodology may not fit the needs of all the claims.  Therefore, multiple damages scenarios based on a specific set of legal claims, facts and assumptions may be necessary in some cases.  Conversely, the opinions might suggest that a damages calculation may include multiple elements or claims, some of which may become moot, but the calculation could still satisfy some evidentiary or procedural needs.  While it is not possible to address all the matters of the opinions in this article, the opinions do remind us to be mindful of a few things in the damages expert arena.

Litigants, litigation counsel, and damages experts should take care in:

Keywords: litigation, expert witnesses, Supreme Court opinion, class certification, damages expert, swap agreements, Comcast Corp.

–Mike Fahlman, Grant Thornton LLP, Phoenix, AZ

April 3, 2013

"The Subspecialty Itself Is a Specialty"

Last month, the Arizona Supreme Court clarified what qualifications an expert witness must possess in order to testify regarding the appropriate standard of care in medical malpractice actions.  Baker v. University Physicians Healthcare, CV-12-0102-PR (Ariz. 2013) (analyzing and interpreting A.R.S. § 12-2604). 

In Baker, Plaintiff Robert Baker sued Dr. Whittman, a board-certified pediatrician with a subspecialty in pediatric hematology-oncology,  for wrongful death after Baker’s teenage daughter died following treatment by Dr. Whittman for blood clots.  Baker intended to call Dr. Brouillard, a board-certified internal-medicine doctor with a subspecialty in hematology and medical oncology, to testify regarding the applicable standard of care.

After Baker disclosed Brouillard as his standard-of-care expert, Whittman moved for summary judgment, arguing that Brouillard was not a qualified expert under A.R.S. § 12-2604.  Generally speaking, that statute forbids a licensed health professional from giving expert testimony on the appropriate standard of care in a medical malpractice action unless that health professional (1) is an expert in the same specialty as the defendant—including being board certified if the defendant is board certified; and (2) devoted a majority of his/her professional time in the year preceding the alleged malpractice to either active clinical practice in the same specialty as the defendant, or  instructing students in an accredited program regarding the same.

The trial court granted Whittman’s motion for summary judgment, determining first that the relevant “specialty” was pediatric hematology-oncology, and then holding that Brouillard could not testify as to the applicable standard of care because he was not certified in that specialty.  The court of appeals, while agreeing that Brouillard could not testify, held that the relevant specialty was pediatrics, not the subspecialty of pediatric hematology-oncology.  The court of appeals reasoned that only the 24 specialties recognized by the American Board of Medical Specialties could be considered as “specialties” under the statute, not subspecialties like pediatric hematology-oncology.

The Supreme Court ultimately sided with the trial court’s analysis. The clear intent behind A.R.S. § 12-2604, reasoned the court, was to ensure that only physicians who possess comparable training and expertise to the defendant are allowed to provide expert testimony regarding whether the defendant provided appropriate care.  To that end, the court held that the term “specialty” refers to any area in which physicians can obtain certification, including subspecialties.  After all, held the court, subspecialties, while more focused areas of practice encompassed by broader specialties, are really specialties in and of themselves.

The court concluded that to be qualified to testify regarding the appropriate standard of care in a medical malpractice action, an expert witness must be a specialist in the same specialty that the defendant was practicing in at the time of the alleged malpractice. This case makes clear that in Arizona, the relevant “specialty” may in fact be a subspecialty, dependent on the particular facts of the case.

Practically, this decision will likely make it more difficult for plaintiffs to secure proper expert testimony in medical malpractice actions.

Keywords: litigation, expert witnesses, subspecialty, medical malpractice, standard of care, testimony, qualifications

–Benjamin C. Nielsen, Quarles & Brady, Phoenix, AZ

March 11, 2013

Daubert for Drug-Sniffing Dogs

The U.S. Supreme Court ruled in Florida v. Harris on February 19, 2013 that evidence of a drug-detection dog’s satisfactory performance in a training program by itself can sufficiently establish the reliability of the dog’s alerts as probable cause under the Fourth Amendment. Florida v. Harris, ____ S. Ct.____ , No. 11-817, 2013 WL 598440, at *6 (Feb. 19, 2013). In its decision, the Court overruled an opinion of the Florida Supreme Court, which had held no probable cause existed to conduct a search of a stopped vehicle where the state produced no evidence of the canine’s reliable performance in traffic stops and other field work. While the case substantively deals with criminal procedure and probable cause determinations, viewed from another angle, it demonstrates what is required of a particular category of expert— the drug-sniffing dog— before a court should allow reliance on that expert’s determinations.  The decision may be considered a sort of “Daubert for drug-sniffing dogs.”

The Supreme Court considered when a canine can be deemed reliable and expressly rejected the Florida Supreme Court’s holding that a dog’s reliability can be established only by providing his training records, field performance records, and any other evidence of reliability. The Supreme Court concluded that if a drug-sniffing dog has been independently certified for reliability, then “a court can presume . . . that the dog’s alert provides probable cause.”  Id.

The central question was not just how to determine the reliability of a dog’s alerts but also when the court should permit reliance on the dog’s expertise.  Here a court is faced with an expert—the dog— who cannot be cross-examined on his qualifications, past training and work experience, or why he alerted in a particular case. Only the expert’s handlers or trainers can be cross-examined.  Certainly those individuals may be recognized as experts under Daubert and Federal Rule of Evidence 702.  See Fed. R. Evid. 702; Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 148 (1999); United States v. $49,790 in U.S. Currency, 763 F. Supp. 2d 1160, 1166 (N.D. Cal. 2010).  Yet the reliance on other experts to argue the dog’s expertise may obstruct the court’s gatekeeping function in assessing the reliability of the dog’s alerts. However, one important distinction (among numerous obvious differences) between drug-detecting dogs and Rule 702 experts was underscored in the Court’s opinion and perhaps counterbalances the gatekeeping concern: law enforcement departments have robust incentives to train canines to alert reliably.

The Supreme Court’s holding that the absence of a certification does not preclude a finding of the dog’s reliability echoes established principles of expert testimony under Rule 702.  For example, numerous courts have held that witnesses may give expert medical testimony even if they have no advanced degree or are not licensed in the relevant specialty or jurisdiction.  See, e.g., Grindstaff v. Coleman, 681 F.2d 740, 743 (11th Cir. 1982); United States v. Bilson, 648 F.2d 1238, 1239 (9th Cir. 1981); Alvarado v. Weinberger, 511 F.2d 1046, 1049 (1st Cir. 1975).  Also, a drug-detecting dog’s reliability must be determined by considering all of the circumstances and evidence presented, so experience and certifications are not dispositive of reliability for Fourth Amendment probable cause determinations.  Again, this parallels expert witness determinations under Rule 702, where extensive qualifications may bear on reliability, but reliability does not automatically follow from qualifications.  United States v. Frazier, 387 F.3d 1244, 1261 (11th Cir. 2004), cert. denied, 544 U.S. 1063.      

Florida v. Harris, viewed as a sort of “Daubert for Drug-Sniffing Dogs,” gives judges great latitude to consider a dog’s (and its handler’s) training and experience when determining reliability.

Keywords: litigation, expert witnesses, reliability, Daubert, drug dogs, probable cause, Fourth Amendment

Molly L. Wiltshire is an associate with Schiff Hardin, LLP in Chicago, IL.

January 14, 2013

Arizona Court of Appeals Adopts "Cat is out of the Bag" Approach

Examining a legal question of first impression in Arizona, the Arizona Court of Appeals recently held that a party may not reinstate the privileges and discovery protections that apply to consulting experts by redesignating a testifying expert as a consultant after the expert's opinions have been disclosed. Para v. Anderson ex rel. County of Maricopa, 1 CA-SA 12-0086, 2012 WL 5362201 (Ariz. Ct. App. Nov. 1, 2012). The court also held that while the opposing party may therefore depose such an expert, the trial judge retains broad discretion under Arizona Rule of Civil Procedure 403 to regulate the use, and admissibility, of the expert's testimony at trial.

In Para, the plaintiff sued Dr. Khoury and Dr. Para for negligence and wrongful death. As part of that suit, the plaintiff disclosed his medical expert, Dr. Pantilat, who would testify at trial that Dr. Khoury's treatment of the decedent fell below the applicable standard of care. A few months later, however, the plaintiff and Dr. Khoury settled.

Dr. Para, still a codefendant, designated Dr. Khoury as a non-party at fault and gave notice that he intended to rely on plaintiff's previous disclosure of Dr. Pantilat's opinions. At that point, plaintiff attempted, by motion, to redesignate Dr. Pantilat as a consulting expert to prevent Dr. Pantilat from being deposed. Plaintiff argued, and the superior court agreed, that the redesignation of Dr. Pantilat from a testifying expert to a consulting expert would reinstate the privileges and discovery protections that apply only to consulting experts.

While a matter of first impression in Arizona state court, the court of appeals noted that this issue has been examined by various federal courts, resulting in a split of authority. Some courts have held that the redesignation of an expert does work to prevent discovery from that expert, even after that expert's reports or opinions have been disclosed. Other courts have applied the “cat is out of the bag”approach —once the expert's opinions are disclosed the privileges applicable to consultants are lost and cannot be revived by a change in title.

The Arizona Court of Appeals sided with this approach. Otherwise, wrote the court, form would triumph over substance and the effectiveness of discovery rules as tools for efficient and fair resolution of disputes would be blunted.

Importantly, the court also held that in order to adequately protect the party who initially retained the expert from unfair prejudice, the trial court retains discretion, pursuant to Arizona Rule of Evidence 403, to evaluate and control the use of such testimony.

The plaintiff has filed a petition for review of this decision with the Arizona Supreme Court. If review is accepted, we will provide an update.

Keywords: litigation, expert witnesses, redesignation, discovery protection, testifying expert, consulting expert, priviliges, opinions

Edward A. Salanga and Benjamin C. Nielsen, Quarles & Brady, Phoenix, Arizona

July 10, 2012

Supreme Court Clarifies Confrontation Clause in DNA Case

In Williams v. Illinois, No. 10-8505, 2012 U.S. LEXIS 4658 (June 18, 2012), the Supreme Court confronted the issue of whether an expert’s testimony based on facts made known to the expert, but for which the expert does not have firsthand knowledge, violates the Sixth Amendment Confrontation Clause as interpreted in Crawford v. Washington, 541 U.S. 36, 50 (2004) (finding that testimonial statements of witnesses absent from trial can be admitted only where the declarant is unavailable and only where the defendant has had a prior opportunity to cross-examine). In a 5–4 decision, the Court found that it did not—at least not in this DNA-evidence-related case. Notably, however, one of the five justices for the majority disposition concurred in the judgment only, disavowing the plurality’s reasoning.

Williams involved a defendant convicted of rape following a bench trial. After the victim was abducted, robbed, and raped, she was taken by ambulance to the hospital, where doctors took a blood sample and vaginal swabs for a sexual-assault kit. The kit was then collected by the police and sent to the police lab for testing, where the presence of semen on the swabs was confirmed. Later, the swabs were sent to an outside lab (Cellmark) for DNA testing, and that lab produced a report containing a DNA profile. From there, a forensic specialist at the police lab (Sandra Lombatos) matched the Cellmark DNA profile to an individual in the state DNA database. That individual was later identified by the victim in a lineup and at trial as her assailant.

During trial, the prosecution presented three forensic experts: one regarding the presence of semen on the victim’s vaginal swabs, one regarding the defendant’s blood sample in the state DNA database, and Lambatos, who presented the testimony at issue. In particular, Lambatos answered “yes” to a question regarding whether there was a match between the DNA profile “found in semen from the victim’s vaginal swabs” and the DNA profile identified from the defendant’s blood sample. While Lambatos conducted her own independent testing, such testing was based on data received from Cellmark. To that end, Lambatos testified that it was common practice for one DNA expert to rely on the records of another DNA expert and that Cellmark was an accredited lab. No one from Cellmark testified, and the Cellmark report was not admitted into evidence.

In a plurality opinion, the Court concluded that Lambatos’ testimony did not violate the petitioner’s confrontation rights based on two independent determinations: The statements were not offered to prove the truth of the matter asserted (in other words, that the DNA profile Cellmark reported was actually found in the semen from the victim’s swabs), and even if the Cellmark report had been introduced for its truth, it was different from the types of extrajudicial statements (such as affidavits or confessions) the Confrontation Clause was originally understood to reach. It further noted that, if DNA evidence could not be introduced without calling the various technicians who participated in the preparation of the profile, economic pressures would encourage prosecutors to forgo DNA testing and rely instead on less dependable forms of evidence, such as eyewitness testimony.

With regard to its first determination, the plurality found that Lambatos related Cellmark’s out-of-court statements solely to explain the assumptions on which her expert opinions rested (in other words, it was basis testimony allowable under modern evidentiary rules). However, the plurality emphasized that the underlying case involved a bench trial, noting that, had the case been tried to a jury, there might have been concerns that the jury would take the testimony as proof of the matter asserted.

With regard to the second determination, the plurality stressed that Cellmark’s report was produced before any suspect was identified and did not have the primary purpose of accusing a targeted individual.

The dissent, relying on Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), and Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011), would have found that the petitioner’s confrontation rights were violated because Cellmark’s out-of-court statements were testimonial, were offered for their truth (truthfulness had to be assessed to determine the validity of the conclusion), and were therefore subject to cross-examination.

While Justice Clarence Thomas concurred in the judgment, he found the plurality’s analysis flawed. He opined that the out-of-court statements were offered for their truth but were not testimonial. For his part, he suggested that the clause should be limited to those statements bearing “indicia of solemnity” (for example, affidavits or depositions). No other justice ascribed to his opinion or test.

Keywords: litigation, expert witnesses, Supreme Court, Confrontation Clause

—Angeleque Linville, Wick, Phillips Gould & Martin, LLP, Dallas, Texas

May 30, 2012

Texas Medical Malpractice Expert Reports Insufficient—Again

The Houston Court of Appeals recently found that healthcare liability experts must specify the standards of care for each defendant in multi-party suits, or where applicable, specify that the standard of care is a general one that applies to all defendants. In Univ. of Tex. Med. Branch at Galveston v. Qi, No. 14-11-00704-CV, 2012 Tex. App. LEXIS 3156 (Tex. App.-Houston [14th Dist.] Apr. 24, 2012), a mother (Qi) claimed that individuals employed by the University of Texas Medical Branch at Galveston (UTMBG) were negligent in providing her medical care, and that their negligence resulted in the death of her unborn child. The allegedly negligent employees included both the doctor and the nurse who provided prenatal care to Qi during the week before the fetal demise.

In connection with her claims, Qi provided an expert report stating, among other things, that the standard of care was violated by the clinicians by not further evaluating Qi during her prenatal visit, which most likely would have resulted in the diagnosis of preeclampsia (a pregnancy complication involving high blood pressure and excess protein in urine) and treatments that would have saved the baby. Because the report was provided in connection with a healthcare liability claim, it was subject by statute to specific requirements, including a sufficient explanation of the applicable standard of care, the manner in which each defendant failed to meet that standard, and the causal relationship between that failure and the injuries sustained.

In this case, UTMBG sought a dismissal based on its perceived inadequacies of the expert report, which the trial court denied. The appellate court, however, found that the expert’s report was indeed inadequate, as it (1) failed to sufficiently describe the standard of care applicable to and breached by each defendant, and (2) failed to specify whether that standard applied to the doctor, the nurse, or both. Ultimately, the court reversed and remanded for further proceedings to include a determination of whether to allow Qi additional time to cure the deficiencies.

Keywords: litigation, expert witnesses, products liability litigation, healthcare liability, UTMBG

— Angeleque Linville, Wick, Phillips, Gould & Martin, LLP, Dallas, TX

May 1, 2012

Texas Court Examines Expert Valuation and Income Potential

The State of Texas and Tarrant County, Texas v. Ledrec, Inc., No. 02-11-00267, 2012 Tex. App. LEXIS 2895 (Tex. App.—Fort Worth April 12, 2012), a recent condemnation case out of the Second District Court of Appeals, tackled the question of whether an expert can testify as to a damage amount based on the expert’s opinion that remainder property loses some or all of its income-producing potential, and thus market value, as of the date of taking due to the mere potential of future annexation.

The case involved the condemnation of a 10-foot strip of land from Ledrec, Inc.’s property that abuts F.M. 1187 in the extraterritorial jurisdiction of Mansfield. Ledrec argued that the condemnation would render the property noncompliant with Mansfield’s 30-foot-setback requirements. The rub comes from the fact that while the property could be annexed by Mansfield and then subject to (and noncompliant with) the setback regulations, the property was not currently bound by those regulations. The dispute between the parties therefore centered on the appropriate damage award for the remainder of the property because of the taking.

Ledrec’s expert testified that, as of the date of the taking, a buyer would not attribute any value to the two buildings because they would be unleaseable based on the uncertainty of the annexation, and he opined that the resulting lost income from the two buildings would be $248,000. In other words, if the taking had not occurred, the two buildings would be valued at $39.97 per square foot or $248,000. The opinion that the buildings would be rendered unleaseable focused on the assumption that a willing buyer would presume that the front two buildings would not generate any income as of the date of taking because of the possibility that an annexation would force a change in use of the buildings and would therefore assign no value to those buildings in a purchase.

Texas and Tarrant County alleged that Ledrec’s expert’s testimony is inadmissible as a matter of law because it is remote, speculative, and based on conjecture in that it is based on the mere possibility that the buildings will become functionally obsolete and no longer generate income as of the day of the taking, even though Mansfield has not yet annexed the property and there is no evidence as to when Mansfield will annex it.

The court ultimately determined that the expert’s testimony was not based on a speculative or remote possibility (the property’s market value at the time of a future annexation) but is instead based on an assessment of the current value a willing buyer and seller would place on the remainder property as of the date of taking because of the perception that annexation could limit the property’s use. Whether the expert’s opinion is correct is not for the court to determine.

Keywords: litigation, expert witnesses, condemnation, income potential, market value, annexation

—Rob Wills, Wick, Phillips, Gould & Martin, LLP

May 1, 2012

Expert Retractions Threaten Scientific Community

As the number of retracted scientific publications steadily rises, the scientific community braces itself for the impact of a profound problem. In a New York Times article published on April 16, 2012, Carl Zimmer recounts the dire situation facing scientists today—rising retractions are threatening the integrity of scientific publications worldwide. Bolstered by the heightening concerns of Dr. Ferric C. Fang, editor in chief of the journal Infection and Immunity, and Dr. Arturo Casadevall of the Albert Einstein College of Medicine in New York, Zimmer makes it clear that this sharp rise in retractions is prompting a call for reform.

In the fall of 2010, Fang discovered that Naoki Mori, an author for Infection and Immunity, had doctored several papers. This finding led to the retraction of nearly three dozen of Mori’s publications. This unsettling discovery revealed the breadth of this problem—published retractions have increased tenfold in the past decade. Fang attributes this shocking number of retractions to the fiercely competitive nature of the scientific community. As new Ph.D.’s compete for a small number of jobs each year, cutthroat tactics and insidious falsification replace concerns about the quality of research as scientists vie to win the race for prestigious publication. It seems, as Fang suggests, that a high-profile paper in a high-profile journal is “becoming the price of admission.”

In this increasingly competitive scientific community, Fang and Casadevall believe that the system of scientific publication must be fundamentally changed. The two editors suggest furthering this goal of reform by:

 

By turning the focus of scientific publication to the enrichment of the community and away from the advancement of the individual, Fang and Casadevall hope to thwart what Casadevall refers to as the “tremendous threat” of rising retractions.

Keywords: litigation, expert witnesses, retractions, scientific community

—Meredith Perry, Wick Phillips, Gould & Martin, LLP, Dallas, Texas

March 22, 2012

Opposing Party Bears Burden of Showing Expert Is Unreliable

Fair v. Allen, No. 11-30467, 2012 U.S. App. LEXIS 2091 (5th Cir. Feb. 3, 2012), involved battling expert-witness testimony with regard to the assessment of damages sustained as a result of a vehicular accident. While the plaintiffs’ expert opined that the plaintiffs were disabled and severely injured as a result of the accident and offered positive diagnostic tests in support thereof, the defendants’ expert testified that the plaintiffs only suffered soft-tissue damage and that the medical diagnostic tests relied on by the plaintiffs were unreliable. Ultimately, the jury found the defense expert more credible and only awarded damages consistent with soft-tissue damage.

On appeal, the plaintiffs essentially contended that the jury should not have been allowed to find the defendants’ expert more credible. The Fifth Circuit disagreed and affirmed the judgment. In particular, the court found that the jury was properly entitled to consider the defense expert’s testimony because there was no documented pattern of bias or one-sided advocacy (in other words, the expert was not a hired gun), the expert provided sufficient underlying support for his opinion, and the validity and appropriateness of medical diagnostic tests is not absolute—it is an issue of fact for the jury’s determination after considering and weighing each side’s evidence.

Courts do not easily disregard an expert’s credentials and find him so biased that his testimony cannot be considered. After reiterating the rule that the basis of an expert’s opinion goes to weight and not admissibility—unless, of course, the opinion is so useless that it would not actually assist the jury—the court noted that the onus is on the opposing party to explore the factual bases of an expert’s opinion. In this case, the plaintiffs did nothing to demonstrate that sufficient support for the expert’s opinion was lacking.

Keywords: litigation, expert witnesses, reliability, Fifth Circuit

—Angeleque P. Linville, Wick Phillips Gould & Martin LLP, Dallas, Texas

October 27, 2011

Antitrust Litigation and Experts

Experts play an unusually large and essential role in antitrust matters, whether in private and class-action litigation or in litigation with the Federal Trade Commission or the Department of Justice. Experts are needed to support claims about the nature of the relevant market, the existence of effective competition, and so on. Selecting and examining experts then raises issues at the heart of any antitrust case. Given the importance of experts to antitrust cases, it is not a surprise that the antitrust community has much to say about experts in litigation.

The Summer 2011 issue of Antitrust (a publication of the ABA’s Section of Antitrust Law) is devoted to expert testimony in antitrust matters. While the experts in antitrust matters are mostly economists, the problems and possible solutions in dealing with experts in highly technical and complex topics carry over to other areas of law and experts in other specialized and academic disciplines.

While antitrust law is the background frame, so to speak, for the articles, they are not just for antitrust lawyers or economics wonks—there are valuable discussions of and advice for anyone whose cases involve expert testimony. The articles cover the cross-examination of experts, challenges under Daubert, judicial gatekeeping, and complex testimony, none of which are limited to the antitrust world, and the advice useful in dealing with most sorts of experts. There is also an interview with Judge Vaughn Walker of the Northern District of California. There is even an introduction to econometrics aimed at lawyers. Even if you never handle an antitrust case, this issue will prove useful.

Keywords: litigation, expert witnesses, antitrust cases

—John H. Bogart, Telos VG, PLLC, Salt Lake City, Utah

October 19, 2011

Washington Clarifies the Frye and Daubert Standards

The Washington Supreme Court recently entered a decision that significantly clarifies the admissibility of expert testimony that relies on scientific evidence. In Anderson v. Akzo Nobel Coatings, Inc., No. 8226406, 2011 Wash. LEXIS 669 (Wash. Sept. 8, 2011), the court recognized tension between the Frye “general acceptance” and Daubert “reliability” tests for admitting expert testimony and noted that Washington courts had yet to definitively adopt one standard for civil cases. The court ultimately held that the “Frye test is only implicated where the opinion offered is based upon novel science,” and does not apply to opinions, theories, or methods that are generally accepted in the scientific community.

In Anderson, the plaintiff worked for Akzo Novel Coatings for five years as, among other things, the health, safety, and environmental coordinator at her facility. As part of her job responsibilities, the plaintiff regularly mixed paint. While the company had a policy requiring employees to wear respirators when mixing paint, the policy was evidently not enforced and even undermined. While employed at the company, the plaintiff gave birth to a son with multiple birth defects, including neuronal migration defect, congenital hemiplegia, microcephalus, and multicystic dystplastic kidney. One of plaintiff’s physicians concluded that her son’s birth defects were likely caused by exposure to paint chemicals. After being laid off for allegedly complaining about the company’s safety conditions, the plaintiff sued for negligence and wrongful discharge. As part of her case, the plaintiff retained various experts who were prepared to testify that the birth defects were caused by the organic solvent exposure.

The company sought to exclude the experts, arguing that their testimony did not meet the “generally accepted” standard under Frye, and the trial court agreed. The Washington Supreme Court reversed, holding that the Frye test is not implicated when the theory and methodology used by the expert is “generally accepted” in the relevant scientific community. The court rejected the trial court’s conclusion that “there must be consensus of scientific opinion on the issue of specific causation,” and instead held that “if the science and methods are widely accepted in the relevant scientific community, the evidence is admissible under Frye, without separately requiring widespread acceptance of the plaintiff's theory of causation.” Thus, Frye “does not require that the specific conclusions drawn from the scientific data . . . be generally accepted,” so long as the underlying theories and methods are generally accepted. Further, the court explained that the Frye test—and its more stringent admissibility standard—applies only when the opinion is based on experimental or “novel” science. In this case, the court noted that “there is nothing novel about the theory that organic solvent exposure may cause brain damage,” and reversed the trial court’s ruling that had excluded the testimony of the plaintiff’s experts.

As a result of the Anderson decision, Washington litigants will have an easier time submitting expert testimony based on new or developing scientific theories and methods. Attorneys should pay careful attention to the case law governing their state and stay attuned to whether this decision is followed by other state appellate courts.

Keywords: litigation, expert witnesses, Daubert, Frye, Washington, admissability

—Joseph Callister, Wick, Phillips, Gould & Martin, LLP

October 4, 2011

How Should Courts Handle Evolving Science?

Shaken baby syndrome is one area where changes in science may affect both civil and criminal proceedings. Changes like these can be unsettling when they cast doubt on judgments and/or criminal convictions. There is relatively little commentary on the problem and even less from the courts.

Prof. Sandeep Narang’s paper, A Daubert Analysis of Abusive Head Trauma/Shaken Baby Syndrome, discusses changing science and how courts should respond, looking at the example of science relating to shaken baby syndrome.

In recent years, there have been challenges to the science for diagnosing shaken baby syndrome resulting in legal commentary arguing that judgments, civil or criminal, are unsupported. Prof. Narang reviews the leading current salient science literature and considers that work in the context of Daubert standards. He offers some options for judges dealing with the admissibility of complex medical expert testimony.

Keywords: litigation, expert witnesses, Daubert, shaken baby syndrome, admissability

—John H. Bogart, Telos VG, PLLC, Salt Lake City, Utah

September 27, 2011

USCIS to Use FY2011 Visa Allocations through September

Although the Department of the State has distributed all employment-based immigrant visas for fiscal year 2011, U.S. Citizenship and Immigration Services (USCIS) will continue accepting the adjustment of status applications based on the September visa bulletin through the entire month of September.

Keywords: litigation, immigration, U.S. Citizenship and Immigration Services, visas

—Rajan O. Dhungana, UNLV Boyd School of Law J.D. Candidate 2013

September 27, 2011

USCIS Begins First Phase of EB-5 Enhancements

U.S. Citizenship and Immigration Services (USCIS) is implementing the first phase in a series of proposed enhancements to the EB-5 program [PDF]. Form I-924 applicants can now communicate directly with USCIS adjudicators via email, helping to streamline the process and to quickly raise and resolve issues and questions that arise during the adjudication process. The Form I-924 is the Application for Regional Center Under the Immigrant Investor Pilot Program. Information on how direct email communication will work can be found in the USCIS Questions and Answers document.

Keywords: litigation, immigration, U.S. Citizenship and Immigration Services, EB-5

—Rajan O. Dhungana, UNLV Boyd School of Law J.D. Candidate 2013

September 27, 2011

USCIS Seeks Comments on SIJ Classification

U.S. Citizenship and Immigration Services (USCIS) is seeking public comment on a proposed rule governing the Special Immigrant Juvenile (SIJ) classification. The proposed rule, if promulgated as a final rule, would allow USCIS to grant SIJ classification to petitioners whose reunification with one or both parents is not possible because of abuse, neglect, abandonment, or a similar basis found under state law. USCIS will accept public comments until November 7, 2011.

Keywords: litigation, immigration, U.S. Citizenship and Immigration Services, Special Immigrant Juvenile

—Rajan O. Dhungana, UNLV Boyd School of Law J.D. Candidate 2013

September 27, 2011

FAQ Provides Details on DHS Case Closures

U.S. Immigration and Customs Enforcement (ICE) has issued a Frequently Asked Questions (FAQ) document addressing the Department of Homeland Security’s (DHS) new policy of exercising discretion to close removal cases that are not high enforcement priorities. In a memorandum dated June 17, 2011, ICE provided guidance to agency personnel on exercising prosecutorial discretion to ensure that the agency’s immigration enforcement resources are focused on the agency’s enforcement priorities. The new FAQ provides further details on the reasons and goals for the new process.

Keywords: litigation, immigration, U.S. Immigration and Customs Enforcement, Department of Homeland Security

—Rajan O. Dhungana, UNLV Boyd School of Law J.D. Candidate 2013

February 3, 2011

Tenth Circuit Excludes "Human Factors" Expert

In Graves v. Mazda Motor Corp., the Tenth Circuit affirmed the trial court’s decision to exclude “human factors” expert testimony. Exclusion of the expert’s testimony mandated summary judgment. The Tenth Circuit found that the witness did not meet the standards of Rule 702, as his proposed testimony was not based on any data, industry standard, or testing, and instead “rests on no more than his say so,” which is far short of what is required for admission.

Keywords: litigation, expert witnesses, human factors, Tenth Circuit, Rule 702

— John H. Bogart, Telos VG, PLLC, Salt Lake City, Utah

Expert Witnesses under State Law

The Trial Evidence Committee has published a 50-State Survey of the standards applied to admissibility of expert testimony. The survey identifies the standard under which the testimony may be received in each state. The 50-State Survey of Daubert/Frye Applicability is available on the Trial Evidence Committee webpage.

Expert Testimony Excluded Because Revised Strategic Business Plan Was Unreliable

In ZF Meritor LLC v. Eaton Corp., 2009 U.S., Judge Robinson of the U.S. District Court for the District of Delaware, granted a motion to exclude the plaintiffs' expert testimony on the grounds that, while the expert employed a reasonable methodology, he had relied on data or information which was not reasonably reliable. In this case, the expert had relied on financial information (a portion of the plaintiffs' Revised Strategic Business Plan) without testing the data reflected or summarized in the financial document. As a result, he could not attest to the reliability of the underlying data or show that it was reasonable to rely on such data. See ZF Meritor LLC v. Eaton Corp., 2009 U.S. Dist. LEXIS 74180.

Update on Proposed Amendments to Rule 26 of the Federal Rules of Civil Procedure

The Judicial Conference has proposed significant amendments to Federal Rule of Civil Procedure 26 and recently closed the public comment period.  An article summarizing the proposed amendments, which were largely proposed by the ABA, may be found here.

The Judicial Conference received close to 80 comments on its Proposed Amendments to FRCP 26, including numerous requests to testify. After three public hearings, during which the Advisory Committee on Civil Rules heard testimony from a range of practitioners and scholars, the Committee voted in its April 20-21, 2009 meeting to approve the proposed amended FRCP 26 with slight modifications. The Advisory Committee forwarded its recommendation to the Committee on Rules of Practice and Procedure for consideration at its June 2009 meeting.

At its June 1-2, 2009 meeting, the Committee on Rules of Practice and Procedure adopted the recommendations of the Advisory Committee that the proposed rules amendments be transmitted to the Judicial Conference for consideration at its September 2009 session. If approved by the Judicial Conference, Supreme Court, and if Congress does not act otherwise, the proposed amendments are scheduled to take effect on December 1, 2010.

Other important resources:

• » A redline of Rule 26 illustrating the proposed amendments | [PDF]
• » Notice to the bench, bar and public from the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States | [PDF]
• » Summary of the proposed amendments prepared by the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States | [PDF]
• » Report regarding the proposed amendments prepared by the Civil Rules Advisory Committee | [PDF]
• » Chart identifying comments received by Civil Rules Advisory Committee
• » Transcripts and podcasts of the public hearings on the proposed amendments

Giving a Work Product Document to a Testifying Expert Can Waive Privilege

When providing documents to your testifying experts be mindful not to provide work product documents. If you do, you may be forced to either lose your protection or your expert – even if you gave the protected document to the expert by mistake. In late April 2007, the Texas Supreme Court held that a litigant who inadvertently provides a work product document to a testifying expert waives protection over the document unless that expert’s designation is withdrawn. In re Christus Spohn Hospital Kleberg, No. 04-0914, 2007 WL 1225351, at *5, (Tex. Apr. 27, 2007).

In reaching its conclusion, the Texas Supreme Court had to harmonize two competing statutes. Specifically, the Court decided that Texas Rule of Civil Procedure 192.3(e)(6), which permits discovery of all documents provided to a testifying expert trumps Texas Rule of Civil Procedure 193.3(d), the “snap-back” or “claw back” rule that allows a party to retract privileged or otherwise protected documents mistakenly produced during discovery. Id.

The Christus case involved documents that were generated in the course of a hospital’s internal investigation of medical malpractice claims. Id. at *1-2. By mistake, a paralegal provided investigation documents and other protected correspondence to the hospital’s testifying expert. Although she received the documents, the expert only “glanced” at them and did not rely on them in preparing her report. Id. The documents were later produced to opposing counsel in response to a subpoena duces tecum served on the expert. Upon realizing its mistake, the hospital sought to recover the documents by asserting the work product privilege and invoking Rule 193.3(d)’s snap-back provision. The trial court overruled the hospital’s claim of protection and the court of appeals denied it mandamus relief. Id.

After granting mandamus review, the Texas Supreme Court considered whether the snap-back provision preserved protection over Rule 192.3’s mandate that documents provided to a testifying expert are discoverable. Id. Noting that the snap-back provision is usually applied when protected documents are produced directly to opposing counsel, the Court recognized that under the circumstances presented here, the fact that the documents went to the expert thus implicated the “overlapping directive” from Rule 192.3 that all material given to a testifying expert must be produced. Id. at *4. The tension between the two rules created an issue of first impression for the Court. Id.

The Court first held that, despite the fact that the expert had not read or relied on the documents, they were subject to Rule 192’s mandate for production and unprotected by the work product privilege. Id. at *3-4. The Court noted Rule 192’s expansive language, stating that the rule requires production of all documents “provided to” an expert, “whether or not the documents were actually read by or prepared for” the expert. Id.

The Court then analyzed whether the snap-back provision might preserve the documents’ protected status or require their return. Id. at *4-5. It recognized that while Rule 193.3(d) focuses on intent by protecting a party when it does not intend a waiver, Rule 192.3(e)(6) requires that “documents and tangible things provided to a testifying expert lose their work-product designation irrespective of the intent that accompanied their production.” Id. at *5.

The Court also acknowledged significant policy concerns surrounding the use of expert witnesses, including their “vast potential for influence” and their ability to testify “unfettered by first-hand knowledge requirements that constrain the ordinary witness.” Id. at 5. Because of this potential, the Court reasoned that a jury should have full knowledge of all information provided to an expert, regardless of whether that information is ultimately relied upon. It thus concluded that Rule 192.3(e)(6) prevails over Rule 193.3(d) “so long as the expert intends to testify at trial despite the inadvertent document production.” Id. at 8.

However, the Court noted that a “producing party in such a situation is not without a remedy” and can choose to withdraw its expert designation and name another. Id. at 10. In so choosing, the party can recover its privileged documents upon realizing its mistake. Id.

— Wendie Childress, Yetter & Warden, LLP, Houston, Texas

ABA House of Delegates Adopts Proposed Policy on Discoverability of Expert Reports

At the ABA Annual Meeting, the House of Delegates adopted a Policy proposed by the Section of Litigation that urges the adoption of consistent rules governing the discoverability of expert reports.

Expert Witness Fees Are Not Recoverable to Prevailing Parents in an IDEA Action

In Arlington Central School District Board of Education v. Murphy, the U.S. Supreme Court held that parents of disabled children that prevail in proceedings under the Individuals with Disabilities Education Act (IDEA) are not entitled to reimbursement for funds expended on experts. The applicable provision of the IDEA, 20 U.S.C. 1415(i)(3)(B), states that “[i]n an action or proceeding brought under this section, the court, in its discretion, may award reasonable attorneys’ fees as part of the costs to the parents of a child with a disability who is the prevailing party.”

Finding the Circuits split as to “whether Congress authorized the compensation of expert fees to prevailing parents in IDEA actions,” the Supreme Court granted certiorari. The majority ruled that such expenses are not recoverable by prevailing parents. Justice Alito, writing the majority opinion, stated the IDEA’s text “makes no mention of expert fees.” In reaching this conclusion, the majority held that the term “costs” as it appears in the statute is a “term of art” that did not include expert expenses. The majority recognized various reports and studies supported finding that expert costs were recoverable by prevailing parents, but ruled that “legislative history is simply not enough” to change the actual statutory language used. The majority also found that requiring school districts to reimburse prevailing parents for expert fees runs afoul of the Constitution’s Spending Clause, which permits Congress to set the terms and conditions on which it disburses Federal funds, because it does not “unambiguously authorize prevailing parents to recover expert fees.”

Expert Witness Sued by Client Can Assert Equitable Indemnity Claim Against Retaining Law Firm

A California appellate court recently held that an expert witness who was sued by its client for professional negligence for providing inadequate testimony in the client's unsuccessful products liability case could assert an equitable indemnity claim against the client's trial attorney, who had not been similarly sued by the client for malpractice but had retained and insufficiently prepared the expert in the underlying case.

In Forensis Group, Inc.v. Frantz, Townsend & Foldenauer, 29 Cal.Rptr.3d 622, 624-25 (Cal. Ct. App. 2005), a testifying expert sought to bring an equitable indemnity claim against the law firm that had retained it as a testifying expert in an underlying wrongful death/products liability case. In the underlying suit, the expert's failure to properly account for certain safety standards in his report and deposition resulted in an adverse summary judgment against the client. The client later sued the expert for professional malpractice, although it did not also bring malpractice claims against its former law firm. In response, the expert asserted a cross-claim against the former law firm, arguing that it was entitled to equitable indemnity for the law firm's failure to adequately inform, prepare, and rehabilitate the expert in the underlying suit. The trial court granted summary judgment against the equitable indemnity claim, holding that the public policies protecting attorney-client loyalty and the confidentiality of client communications prohibited the claim.

The court of appeals reversed. The court noted that while there was in fact a general prohibition on claims for equitable indemnity when a client sues a former attorney for malpractice and the former attorney seeks equitable indemnity from a successor attorney, the policy considerations underlying that rule did not prevent the equitable indemnity claim in the present case. The court held that allowing the equitable indemnity claim between the expert and the law firm would not create a conflict of interest between the law firm and its former client because there was no danger that the law firm, in defending against the equitable indemnity claim, would have to breach either its duty of loyalty or confidentiality to the client. The law firm would not be required to show that the former client's case lacked merit or divulge any confidential client communications; rather, the law firm would only have to show that it provided proper information to the client and satisfied the relevant standards of care in preparing and utilizing the expert.

— Omar Kilany, Carrington, Coleman, Sloman & Blumenthal, LLP, Dallas, Texas