Cordy v. Sherwin-Williams Co.
1994 WL 388902, 156 F.R.D. 575 (1994)
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Rule of Law:
An expert witness who was previously retained by one party and received confidential work-product information cannot subsequently be retained by the opposing party in the same litigation. Such side-switching warrants the disqualification of both the expert and the retaining law firm to protect the integrity of the judicial process and prevent the unfair use of confidential information.
Facts:
- Sterling Cordy suffered serious injuries in a bicycle accident at a railroad crossing allegedly owned by Sherwin-Williams Company.
- In May 1993, Cordy's law firm, Brown & Connery, contacted and formally retained a forensic engineering expert, James Marley Green, signing a retainer agreement and paying a $3,000 fee.
- Brown & Connery provided Green with a three-ring binder containing confidential information, which included counsel's impressions of the case, a police report, witness interview summaries, photographs, and the report of another expert.
- Green performed approximately 27 hours of work for Cordy's firm and provided at least one oral opinion regarding the cause of the accident.
- In July 1993, following a dispute over billing, Green resigned from his engagement with Brown & Connery and returned the $3,000 retainer.
- In October 1993, Sherwin-Williams' law firm, Marshall, Dennehey, Warner, Coleman & Goggin, contacted and retained the same expert, Green, for the same case, despite Green disclosing he had previously been 'consulted' by Cordy's firm.
- Green later provided a preliminary opinion to Sherwin-Williams' firm concluding that a defect in the bicycle, not the railroad crossing, caused the accident.
Procedural Posture:
- Sterling Cordy (Plaintiff) filed a tort lawsuit against Sherwin-Williams Company (Defendant) in the Superior Court of New Jersey.
- Sherwin-Williams removed the case to the United States District Court for the District of New Jersey.
- Sherwin-Williams filed a motion to compel Plaintiff's counsel to produce the bicycle involved in the accident for examination by their expert, James Marley Green.
- Cordy filed a cross-motion to bar Sherwin-Williams from using Green as an expert and to disqualify Sherwin-Williams' law firm, Marshall, Dennehey, Warner, Coleman & Goggin.
- The U.S. Magistrate Judge held an evidentiary hearing on the cross-motions.
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Issue:
Does an expert witness's act of switching sides in litigation, after being retained by and receiving confidential information from the first party, warrant the disqualification of both the expert and the law firm that subsequently retained them?
Opinions:
Majority - Kugler, United States Magistrate Judge
Yes, an expert's act of switching sides after receiving confidential information warrants the disqualification of both the expert and the retaining law firm. The court's inherent power to maintain the integrity of the judicial process allows for disqualification to prevent conflicts of interest and the unfair use of privileged information. The court found that Green had been formally retained by the plaintiff's firm, not merely consulted, and that it was objectively reasonable for the plaintiff's counsel to believe a confidential relationship existed. During this relationship, Green was given access to protected work product, including counsel's mental impressions and litigation strategy. The court held this was a 'clear case for disqualification' of the expert, as it is impossible for an expert to ignore such information, which could 'subliminally affect his testimony.' Furthermore, the court disqualified the defendant's law firm because it knew of Green's prior involvement and proceeded without properly investigating the nature of that relationship, creating an appearance of impropriety. The court applied a presumption that confidences were shared between the expert and the law firm, and in disqualification matters, any doubt is resolved in favor of disqualification to preserve public trust in the justice system.
Analysis:
This decision establishes a strong precedent for disqualifying 'side-switching' expert witnesses and serves as a significant warning to legal counsel. It clarifies that the standard for expert disqualification focuses on whether it was objectively reasonable for the initial party to believe a confidential relationship existed and whether confidential information was shared. The ruling's most impactful aspect is the disqualification of the entire law firm, demonstrating that courts will impose severe sanctions to deter conduct that creates an appearance of impropriety. This holding impels attorneys to conduct rigorous due diligence on potential experts to uncover any prior involvement with opposing parties, lest they risk their own disqualification from the case.
