Courts Deal With “Dual-Hat” Experts: Part II

Thomas E. Spahn | McGuireWoods

Last week’s Privilege Point addressed a court’s careful sorting out of discovery issues implicated when a non-testifying consulting expert created documents arguably related to his later role as a testifying expert. About two weeks later, the Southern District of New York (Judge Caproni) dealt with other issues involving non-testifying experts.

In In re Commodity Exchange, Inc. Gold Futures & Options Trading Litig., Nos. 14-MD-2548 (VEC) & 14-MC-2548 (VEC), 2021 U.S. Dist. LEXIS 113760 (S.D.N.Y. June 17, 2021), plaintiffs alleged that defendants comspired to manipulate the London daily benchmark gold price. Defendants sought to depose plaintiffs’ non-testifying consulting experts, but the court rejected defendants’ motion. First, defendants argued that plaintiffs’ non-testifying experts were “fact witnesses and not experts,” because they were familiar with gold pricing issues from their previous work. Id. at *24. The court acknowledged that Fed. R. Civ. P 26(b)(4)’s Advisory Committee’s Notes state that experts may be deposed about information they acquired as “an actor or viewer with respect to transactions or occurrences that are part of the subject matter of the lawsuit.” Id. at *25. But the court concluded that plaintiffs’ experts had not “traded gold or gold-based instruments or participated in any way in the Fixing process” – and that “[b]y Defendants’ logic, most experts who analyze facts are fact witnesses who fall outside the ambit of Rule 26(b)(4)(D), swallowing any protections afforded by the Rule.” Id. at *26-27. Second, the court found that plaintiffs’ experts had waived certain work product protection – accurately noting that “[c]ourts are split as to whether [non-testifying consulting experts’] protections can be waived.” Id. at *29. After concluding that the non-testifying consulting expert Rule did not protect plaintiffs’ experts from depositions, the court nevertheless denied defendants’ motion to depose them – concluding that “any additional information obtained from deposing [plaintiffs’ non-testifying consulting experts] would be unreasonably cumulative or duplicative of the information Defendants should have already received via fact discovery.” Id. at *37.

Litigants and their lawyers should always consider both non-testifying and testifying experts’ source of information – especially if these experts move from one role to the other.

Expert Witness Code of Conduct

Eugene Peterson | Advise & Consult, Inc. | October 7, 2015

While traveling in Great Britain this past week I had the opportunity to do a little firsthand observation and research regarding conduct and ethics of testifying expert witnesses in England as compared to the United States.

Expert witnesses in Great Britain are surrounded by a suspicion of trickery based upon the cynical understanding that experts are paid by attorneys to help them win their cases.  And further that their fees can be based in whole or part upon whether or not they win the case.

Therefore the way the case is presented has a great impact upon the truth and the outcome of the case.  Reckless delivery of evidence is a significant cause for concern in the United Kingdom.  Their Academy of Experts has produced a set of rules and a code setting the standards for expert witnesses.  I know of no formal Code of Conduct in the United States.

As a practicing Construction Defects Expert Witness I now list the guidelines and rules of our British counterparts with the hope that it can be a reminder of what represents a standard of good conduct.

“Expert witnesses shall not do anything in the course of practicing as an expert, in any manner which compromises or impairs or is likely to compromise or impair any of the following:

  1. The expert’s independence, impartiality, objectivity and integrity;
  2. The expert’s duty to the Court or tribunal;
  3. The good reputation of the expert or of experts generally;
  4. The expert’s proper standard of work; and
  5. The expert’s duty to maintain confidentiality.

An expert who is retained or employed in any contentious proceeding shall not enter into any arrangement which could compromise his impartiality or make his fee dependent on the outcome of the case nor should he accept any benefits other than his fee and expenses.

An expert should not accept instructions in any matter where there is an actual or potential conflict of interest.  Notwithstanding this rule, if full disclosure is made to the judge or to those appointing him, the expert may in appropriate cases accept instructions when those concerned specifically acknowledge the disclosure.  Should an actual or potential conflict occur after instructions have been accepted, the expert witness shall immediately notify all concerned and in appropriate cases resign his appointment.

An expert shall for the protection of his client maintain with a reputable insurer proper insurance for an adequate indemnity.

Experts shall not publicize their practices in any manner which may reasonably be regarded as being in bad taste.  Publicity must not be inaccurate or misleading in any way.

An expert shall comply with all appropriate Codes of Practice and Guidelines.”

The rules from the United Kingdom make a reasonable degree of common sense and for the most part are demonstrated in the actions of most honorable experts we encounter here in the United States.  However we have stumbled upon a few expert witnesses that are not transparent, that misbehave and do not represent their clients properly.  Here are a few examples:

  • Expert as advocates for their client’s with a lack of independence. This is the hired gun that is willing to say anything, do anything, and write anything to ensure a successful conclusion for their client, right or wrong.
  • Incentive based fees
  • Lack of objectivity
  • Selective use of evidence
  • Lack of scientific base for expressed opinions
  • Acting as Expert when they lack requisite expertise
  • Lack of transparency involving known conflicts of interest.

As experts in England are surrounded by a suspicion of dishonesty, deception, deceit, and have attacked it by implementing a Code of Conduct, we in the United States who practice as expert witnesses could profit and improve justice by adhering to a similar code.