Opinion
C.A. No. 02C-11-238-JRS.
Submitted: August 31, 2005.
Decided: September 29, 2005.
Upon Consideration of Plaintiff's Motion to Preclude Expert. DENIED.
Neilli M. Walsh, Esquire, YOUNG, CONAWAY, STARGATT TAYLOR, LLP, Wilmington, Delaware. Thomas R. Kline, Esquire and Leon Aussprung, Esquire, KLINE SPECTER, P.C., Philadelphia, Pennsylvania. Attorneys for the Plaintiff.
Gilbert F. Shelsby, Jr., Esquire and Michael J. Logullo, Esquire, MORGAN SHELSBY LEONI, Newark, Delaware. Attorneys for Defendants, Stephen J. Lawless, M.D. and Papastavros' Associates Medical Imaging, LLC.
Benjamin C. Wetzel, III, Esquire and Natalie M. Ippolito, Esquire, WETZEL ASSOCIATES, Wilmington, Delaware. Attorneys for Defendants Ernest Troisi, DPM and Ernest Troisi, DPM, P.A.
MEMORANDUM OPINION
I.
Plaintiff, Valentino L. Conte ("Mr. Conte"), moves the Court for an Order precluding Mark D. Murphey, M.D. ("Dr. Murphey") from testifying as a defense expert at trial. Mr. Conte contends that Dr. Murphey's service as an expert witness for defendant, Stephen J. Lawless, M.D. ("Dr. Lawless"), creates an irreconcilable conflict of interest because plaintiff's counsel consulted with Dr. Murphey about this case prior to defense counsel retaining Dr. Murphey as an expert. According to Mr. Conte, his attorney supplied Dr. Murphey with confidential information during their consultation which thereby disabled Dr. Murphey from serving as an opposing expert, even though plaintiff's counsel did not engage Dr. Murphey after their one and only consultation.
Docket Item ("D.I.") 93.
For the reasons that follow, the Court finds that Mr. Conte has failed to demonstrate that his attorney established the sort of confidential relationship with, or disclosed the type of confidential information to, Dr. Murphey that would justify precluding him from further involvement in this litigation. Consequently, Mr. Conte's motion to preclude Dr. Murphey from testifying as a defense expert must be DENIED.
II.
Mr. Conte initiated this medical negligence action against Dr. Lawless on November 27, 2002. He alleges that Dr. Lawless was negligent in his interpretation of certain radiographic studies such that he failed to diagnose a rare form of cancer in Mr. Conte's foot. Mr. Conte further alleges that as a proximate result of Dr. Lawless' negligence, the cancer spread and ultimately could only be treated by a below the knee amputation.Dr. Murphey's first introduction to this case occurred somewhat circuitously. Mr. Conte's attorney engaged a young doctor, Jonathan Gusdorff, M.D. ("Dr. Gusdorff"), to assist with the location of potential experts for the plaintiff. In May 2002, Dr. Gusdorff attended a conference where Dr. Murphey was teaching. After one of the sessions, Dr. Gusdorff inquired of Dr. Murphey whether he would be willing to review some radiographic films in connection with possible litigation. Dr. Murphey agreed and at some point thereafter reviewed Mr. Conte's films with Dr. Gusdorff. Upon review of the films, Dr. Murphey concluded that "it would [not] be unreasonable to miss something like what the finding was on the plain film."
D.I. 95 at Ex. C, 14.
Id. at 15.
D.I. 94 at Ex. A, 28.
At some point thereafter, Mr. Conte's attorney alleges that he had a telephone conference with Dr. Murphey during which he provided some background facts to Dr. Murphey and shared some of his impressions about the case before soliciting Dr. Murphey's opinion. When Dr. Murphey confirmed that he could not conclude that the radiologist was negligent when he missed the suspicious finding on the plain x-ray, plaintiff's counsel wisely determined that Dr. Murphey should not be engaged and the relationship with Dr. Murphey, such that it was, terminated. Plaintiff's counsel then prepared a memorandum in which he summarized the teleconference.
Dr. Murphey has testified that he does not recall the conversation but does not deny that it might have occurred. D.I. 95 at Ex. A, 60.
D.I. 93 at ¶ 6.
In March 2004, Dr. Lawless' attorney first contacted Dr. Murphey through another physician who worked with Dr. Murphey. After reviewing the information supplied to him, including radiographic films, Dr. Murphey indicated that he saw no breach of the standard of care by Dr. Lawless.
Id. at Ex. A, 19-20.
Id. at Ex. A, 30-32.
In May 2004, Dr. Lawless notified the Court and plaintiff's counsel that Dr. Murphey would serve as an expert witness in this case. On September 15, 2004, Dr. Murphey was deposed and stated, inter alia, that he did not remember ever discussing this case with Dr. Gusdorff or with Mr. Conte's attorney. According to Dr. Murphey, he reviews thousands of films a year and has numerous discussions with attorneys about serving as an expert witness in litigation. It was not surprising to him, therefore, that he could not recall the encounters with Dr. Gusdorff or the attorney with whom Dr. Gusdorff was working. Even though Dr. Murphey's involvement in the case was disclosed to the plaintiff in mid-2004, Mr. Conte did not bring his motion to disqualify Dr. Murphey until July 21, 2005.
Id. at ¶ 7.
Id. at Ex. A, 58-61.
Id. at Ex. A, 63.
Dr. Lawless argues that the motion should be denied because it was not timely filed. Because the Court has determined that the motion should be denied on its merits, the Court will not reach the issue of the appropriate consequences for failing to bring a motion to disqualify an expert immediately upon learning of the potential grounds for disqualification.
III.
Mr. Conte contends that Dr. Murphey's service as a plaintiff's consultant disqualifies him from later serving as a defense expert witness. He cites a section from the American Medical Association Policy E-9.07 which provides, in part, that physicians serving as experts in litigation should "be committed to evaluating cases objectively and to providing an independent opinion." Mr. Conte alleges that because Dr. Murphey learned confidential aspects of the plaintiff's case when he was consulted by plaintiff's counsel, he can not provide "objective and independent" testimony on behalf of Dr. Lawless.Dr. Lawless counters by attacking the factual predicate of Mr. Conte's argument. Specifically, he argues that Mr. Conte has failed to demonstrate that Dr. Murphey actually possesses, or even remembers, any information that he may have learned from plaintiff's counsel. Indeed, Dr. Murphey has testified under oath that he does not recall any encounters with Dr. Gusdorff or with plaintiff's counsel. The AMA policy to which Mr. Conte cites, therefore, is not implicated here. Moreover, while Dr. Lawless acknowledges that the AMA's policy offers sound advice, he argues that it does little more than that since it does not provide specific factors by which an expert's objectivity might be measured, nor any test that would assist the Court in determining whether a confidential relationship ever existed between the party and the expert.
IV.
It is not uncommon for an expert to be contacted by parties on both sides of a controversy. When litigation ensues as a result of this circumstance, the courts frequently characterize these disputes as "side-switching" cases. Most courts that have confronted the issue have adopted a two-part inquiry to determine whether an expert who has "switched sides" must be disqualified from further participation in the litigation: (1) whether the first party who claims to have retained the expert could reasonably conclude that a confidential relationship existed between the party and the expert; and (2) whether that party disclosed confidential or privileged information to the expert. The party seeking disqualification of an expert bears the burden of demonstrating both the existence of a confidential relationship and that confidential information was shared with the expert. Upon consideration of these factors, the decision of whether to disqualify an expert lies within the sound discretion of the court. When exercising its discretion, the court must be ever mindful that disqualifying an expert is "`a drastic measure which courts should hesitate to impose except when absolutely necessary.'"
A. There Was No Confidential Relationship Between Plaintiff's Counsel and the Expert
Hansen v. Umtech Industrieservice Und Spedition, Gmbh, No. 95-516, 1996 WL 622557, at *3 (D. Del. July 3, 1996).
Id. at *4 (citing Paul v. Rawlings Sporting Goods Co., 123 F.R.D. 271, 278 (S.D. Ohio 1988)).
Id. at *6 (citing Cordy v. Sherwin-Williams Co., 156 F.R.D. 575, 580 (D.N.J. 1994)).
See Wang Labs., Inc. v. Toshiba Corp., 762 F. Supp. 1246, 1248 (E.D. Va. 1991) (Disqualification "[a]nalysis begins with an acknowledgment of the inherent power of federal courts to disqualify experts in certain circumstances. This power exists in furtherance of the judicial duty to protect the integrity of the adversary process and to promote public confidence in the fairness and integrity of the legal process.").
Syngenta Seeds, Inc. v. Monsanto Co., No. 02-1331, 2004 WL 2223252, at *1 (D. Del. Sept. 27, 2004) (quoting Owen v. Wangerin, 985 F.2d 312, 317 (7th Cir. 1993) (citations omitted)). See also Palmer v. Ozbeck, 144 F.R.D. 66, 67 (D. Md. 1992) ("Courts are generally reluctant to disqualify expert witnesses.").
When determining whether a confidential relationship existed between a party and an expert witness, the Court should consider the following factors: (1) the length of the relationship and frequency of the contact; (2) whether the parties entered into a formal confidentiality agreement; (3) whether the expert was paid a fee; and (4) whether the expert was asked to agree not to discuss the case with opposing parties or counsel.
Syngenta Seeds, 2004 WL 2223252, at *2.
Applying these factors to the undisputed evidence sub judice, it is clear that Mr. Conte has failed to demonstrate that a confidential relationship ever existed between his attorney and Dr. Murphey, or that it would have been reasonable for counsel to believe that such a relationship had been established. First, the contact between Dr. Murphey and Mr. Conte's attorney was limited to an initial, and very brief, review of Mr. Conte's case by Dr. Murphey at the request of Dr. Gusdorff in 2002, and a brief follow-up teleconference with plaintiff's counsel during which Dr. Murphey simply reiterated what he had told Dr. Gusdorff. Dr. Murphey recalls neither of these encounters. Second, there was no formal agreement of any sort between Mr. Conte, his counsel and Dr. Murphey, much less a confidentiality agreement. Third, Dr. Murphey was not paid for the brief time he spent considering Mr. Conte's case for Dr. Gusdorff or plaintiff's counsel, presumably because the time Dr. Murphey spent reviewing the case did not justify the time he would spend to create a bill. And finally, there is simply no evidence that Dr. Murphey was ever told to keep his contact with the plaintiff's case confidential.
D.I. 93 at Ex. A, 58-61.
Mr. Conte has cited decisions from the United States District Court for the District of Delaware in support of his contention that disqualification is appropriate here. Simply stated, the cases do more harm than good to the position Mr. Conte is trying to advance. In one case, Syngenta Seeds, the court ultimately concluded that the harsh remedy of disqualification of the expert was not appropriate. In another, Hansen, the court relied heavily upon another decision where disqualification was ordered only after the moving party presented evidence that prior to the expert "switching sides," counsel and the expert were involved in numerous teleconferences, the expert executed a written retainer agreement, the expert was paid a retainer fee, and the expert had been supplied with extensive materials relating to counsel's investigation of the injury. No such evidence exists here upon which a finding of a confidential relationship could be based. Nothing in counsel's memorandum summarizing his teleconference with Dr. Murphey changes this fact.
2004 WL 2223252, at *3-4.
1996 WL 622557, at *4.
D.I. 93 at ¶ 6.
B. No Confidential Information Was Exchanged
In determining whether confidential information was exchanged between a party and an expert, the courts have looked for evidence of discussions regarding litigation strategy. This may include conversations pertaining to other experts the party might want to retain, views on the strengths and weaknesses of each side, and anticipated claims or defenses. Mr. Conte asserts that Dr. Murphey has been made privy to his attorney's mental impressions, conclusions, legal opinions and theories. The record, however, tells a different story. First, the Court must again reiterate that Dr. Murphey testified at his deposition that he does not remember discussing Mr. Conte's case at any time prior to being engaged by the defendant. And while Mr. Conte may have presented evidence that the conversations occurred, he has presented no evidence to suggest that Dr. Murphey's testimony that he does not recall the conversations is fabricated. In this regard, Hansen is once again instructive. There, when faced with an expert who could not remember information regarding the case that may have been acquired before he "switched sides," the court readily concluded that the expert was in no position to pass on confidential information to the other party, assuming he ever possessed such information in the first place. Such is the case here.
Syngenta Seeds, 2004 WL 2223252, at *3 (citing United States ex rel., Cherry Hill Convalescent Ctr., Inc. v. Healthcare Rehab. Sys., Inc., 994 F. Supp. 244, 250 (D.N.J. 1997) (citation omitted)).
D.I. 93 at ¶ 14.
Id. at Ex. A, 61-63.
1996 WL 622557, at *7.
More importantly, it cannot go unnoticed that Mr. Conte has made no effort to identify specifically the nature of the confidential information that was purportedly passed on to Dr. Murphey, beyond making vague references to "litigation strategy" and "theories." More is needed before the Court will determine that a witness is in possession of ill-gained confidential information such that he should be disqualified from testifying as an expert in the case.
D.I. 93 at ¶ 14.
V.
Based on the foregoing, the Court concludes that Mr. Conte has failed to meet his burden of showing the existence of a prior confidential relationship with Dr. Murphey or that any confidential information was disclosed to Dr. Murphey. Accordingly, the Motion to Preclude is DENIED.