Though rare, there are situations that may cause a dismissal of an expert witness due to conflict of interest. When in litigation, it is imperative to have subject matter experts with proper technical expertise, academic credentials, accomplishments, reliable background and personality match. Legal representation should leverage IP litigation support to best prepare for potential conflict of interest situations for witnesses.
Proper Selection of an Expert Witness
GHB Intellect goes through extensive measures to preserve expert witness ethics and provide the highest level of expertise to clients.
First, the extent to which an expert has the experience and credentials necessary to have “probative value” in a case is of paramount importance and GHB Intellect records these aspects for each of its experts. These records include academic credentials accomplishments, such as degrees or certifications and publications. Also, professional experience is evaluated to be sure that, should the case require it, the person has adequate industry/academic experience to be an effective and reputable expert witness. These measures ensure that the testifying expert is “fit for the purpose” of the particular litigation case and avoids the risk of disqualification.
Second, the expert witness candidate is vetted for potential conflicts of interest with respect to the parties involved in the case. There are subtleties in this area that may create conflicts that are sometimes not recognized by the experts themselves. As such, probative questioning regarding their past and present engagements and litigation/IPR cases are necessary to make sure no potential conflict is overlooked. Occasionally, the client is consulted during the vetting process. Our goal is to make sure our clients can trust us in our vetting process.
Next, the expert is evaluated for personality traits that will make them useful in an adversarial environment. This may include background checks to ensure there are no criminal or civil records that would damage the credibility of the expert. In addition, experts will be interviewed personally to be sure they have both excellent communication skills and the stamina of character required to stand up to cross examination. If an SME is not well suited as an expert witness, we inform our clients up front. In such cases, we may recommend the use of the expert in a “consulting expert” role instead.
Conflict of Interest with an Expert Witness
Understanding and recognizing situations with expert witness conflict of interest can be tricky. If the opposing party feels there is a breach in confidentiality or conflict of interest with an expert witness, it is their responsibility to act and verify the conflict. They shall go through enough research and questions in order to determine if there is in fact a conflict of interest. Dismissal can cause damage to the involved parties and the case which is why it is imperative to have proper support and understanding of how to avoid any conflicts of interest with an expert. Dismissal can also cause damage for present and future cases.
While there may be additional ways to have an expert dismissed, here are a few examples:
(1) The expert was in two different cases, one for the opposing side.
(2) Litigation support or attorneys communicated with an expert of the opposing side.
(3) Retaining an expert witness from an opposing employer
(4) The expert previously had conflict on another case.
(5) The expert was deemed as unreliable for not providing enough evidence when required
(6) The expert did not have the proper experience, academic background and/or positive personal background check.
How to Avoid a Motion to Dismiss an Expert Witness
When there is reason to believe a conflict of interest with an expert witness exists, the court will ask a few questions to understand the situation. Some of the questions could be:
(1) Is there a reason to believe there is a confidential relationship with the expert? If there is a confidential relationship, was confidential information disclosed?
An expert might have a confidential relationship, but not disclose confidential information. Which is why it is important to know what exactly occurred during the communication that might have occurred.
(2) How often did the meetings or communications occur? What was the amount of work generated through the contacts? Will the expert appear as a witness?
It is up to the expert to provide the burden of proof to stay in the case. There needs to be evidence that will show trial strategy or confidential information was exchanged. Meeting or communicating alone may not be enough to dismiss an expert.
It is best if the expert does not have a connection with the opposing party, however, this can be difficult depending on the case and experience of the expert. More the reason why having litigation support is beneficial. GHB Intellect litigation support will do all the heavy lifting to ensure the hired expert or conflict of expert is of the best quality and/or resolved in the right manner.