Expert witnesses play a key role in professional liability matters. The perfect expert will work with counsel to identify and address issues during discovery and later will effectively condense complex issues to a jury in layperson terms. As a result, attorneys must carefully consider who they select and how to best utilize the expert. In a sense, an expert witness is just another tool available to the professional malpractice practitioner; an expensive and unwieldy tool if not vetted and monitored properly. Often, it is the attorney who may be left to answer for poor results arising from an expert’s misconduct.
A recent Third Circuit holding demonstrates the importance of vetting and supervising experts. In 2000, significant claims arising from the diet drug Fen-Phen were consolidated into a trust to compensate injured claimants. Medical evidence was required to recover from the trust. Some attorneys who represented claimants retained a board-certified cardiologist to read the tests and prepare reports. This particular expert was paid about $2 million for these services.
Subsequently, the expert admitted that in about 10% of the 12,000 cases he reviewed, he dictated reports that blindly duplicated his technicians’ reports despite knowing that the measurements were wrong. Further, the expert acknowledged that he never reviewed about 1,000 of the tests conducted by technicians and office staff.
The expert was convicted of mail and wire fraud, was sentenced to 72 months’ imprisonment, and was ordered to pay restitution of nearly $5 million.
The case highlights the importance of hiring and supervising the right expert. So do your homework. Attorneys must thoroughly vet experts. Search proposed experts in your firm’s legal database and contact other attorneys who have worked with the expert. And, as always, consider the applicable rules of professional conduct.
Per the Model Rules, lawyers are obligated to supervise non-lawyers including experts working with the attorney. The Rules require supervising attorneys to make “reasonable efforts” to ensure that controls are in place to provide “reasonable assurance” that the expert’s conduct is compatible with professional obligations. An attorney is responsible if an expert’s conduct violates the Rules if the lawyer orders the conduct or knows of and ratifies the conduct. The extent of this obligation is to be defined on a case-by-case basis.
Factors to consider include the education, experience and reputation of the expert; the nature of the services involved; the terms of any arrangements concerning the protection of client information; and the legal and ethical environments of the jurisdictions in which the services will be performed, particularly with regard to confidentiality.
When retaining an expert, communicate directions appropriate under the circumstances to give “reasonable assurance” that the expert’s conduct is compatible with professional obligations. Again, doing your homework can help to avoid liability should an expert turn out to be a bad egg down the road.