Conflict Check For Expert Witnesses:What Can Go Wrong
By Steven Babitsky, Esq.
Expert Witnesses who do not have a robust conflict of interest protocol that they follow in each case are risking serious consequences. At SEAK we speak to many expert witnesses each year about issues or vexing problems they are facing.One problem that keeps arising among expert witnesses is the consequences of failing to have and follow a strict conflict of interest protocol.
An expert witness accepts an assignment from plaintiff’s counsel, reads the records and issues a report. Months later that expert accepts a new assignment and receives both the records and confidential information from defense counsel. After putting in a considerable amount of time on the case the expert witnesses realizes it is the same case he worked on previously for plaintiff’s counsel. The expert is now in a no win situation and will likely have to return fees to both counsel and try to extricate himself from this situation.
If this example sounds strange and unusual I have encountered 3 cases like this in the past few years. How does this happen?It is due to the expert not having and following a conflict of interest protocol. All 3 of these cases involved solo expert witnesses who do not have the benefit of a staff often found in large expert witness firms. How bad can this problem get for expert witnesses let’s look at a second example.
A medical expert witness is retained by plaintiff counsel in a medical malpractice case,reads the records and issues a report finding that the standard of care was breached. Months later the same expert is retained in another case by defense counsel, reads the records and issues a report finding the the standard of care was not breached. You can probably figure out where I am going here. Yes! this was the same case, same records, 2 different opinions depending on who retained the medical expert. The expert finally realized his mistake when both counsel marked up his deposition. As a result of a lack of a conflicts check this physician faced the following problems:
1.Potential liability from both the plaintiff’s and defense counsel.
2.The need to return fees to both counsel
3.An investigation by the state medical society
4.Expulsion from his medical specialty organization, and
5. Loss of his reputation and future expert witness business.
Expert witnesses need to implement and follow a strict conflict check protocol in each and every case. When contacted by counsel the expert needs to elicit enough information to make sure no potential conflicts exist before accepting a new case.
Steven Babitsky, Esq. is the founder of SEAK, Inc. which has been assisting expert witnesses for the past 40 years.