Thursday, August 26, 2004
C.A.: Disqualification of Attorney Unwarranted for Unintentional Contact With Opposing Expert
By a MetNews Staff Writer
A San Joaquin Superior Court judge went too far in disqualifying a law firm from representing a personal injury client for unknowingly hiring a defense consultant to serve as an expert witness, the Third District Court of Appeal ruled yesterday.
Justice Ronald Robie, writing for a unanimous panel that also included Justices Coleman A. Blease and Harry Hull, said disqualification was unwarranted where the disqualified attorney had no notice of expert’s dual status until the issue was raised by the defendants’ lawyer and ceased all direct contact with expert after his dual role was revealed, and where undisputed evidence demonstrated that the plaintiff’s lawyer obtained no confidential information from the expert.
The rebuttable presumption that an expert has disclosed confidential information established by Shadow Traffic Network v. Superior Court (1994) 24 Cal.App.4th 1067 does not apply “where expert has remained under the control of the moving party, and there is no evidence counsel knowingly retained the opposing party’s expert or that the expert intentionally advised both sides,” Robie explained.
The expert, Carl C. Clark, was hired by attorney Steve Purtill of the Law Offices of Joseph W. Carcione Jr. to testify about windshields in a personal injury case. The plaintiff in the case, William Collins, claimed a 15-year-old boy threw a two-pound piece of concrete into oncoming traffic, piercing the windshield of the cab of his truck and causing serious head injuries.
Collins sued the state of California and Navistar International Corporation, the manufacturer of the truck he was driving.
Purtill was unaware that Navistar had already retained Clark, and the expert did not mention the fact when Purtill spoke to him.
Purtill’s declaration responding to the disqualification motion stated that Clark did not reveal any information “that could possibly be considered privileged regarding his dealings with the—defendants or their attorneys.” The only information Clark provided to him, Purtill said, was “his opinion regarding whether a glass-plastic windshield would have prevented the concrete from entering William Collins’s truck, and information relating to his experience....”
Shadow Traffic, Robie noted, established a rebuttable presumption that an expert who has obtained confidential information from one employer has shared that information with a subsequent employer.
“Here, however, we conclude the rebuttable presumption should not apply,” the justice declared. “At all times, the expert witness, Dr. Clark, remained a consultant for Navistar’s counsel. At the time defendants filed their moving papers, Navistar’s counsel averred that Dr. Clark was still in the employ of his clients. Further, Navistar’s counsel provided no facts suggesting that Dr. Clark was no longer available to him for purposes of presenting evidence in favor of the motion.”
“Under these circumstances, the reason for shifting the burden of proof to the opposing party does not exist. We conclude the normal burdens of proof, wherein the party moving for relief must establish its right to it, is appropriate.”
The record, Robie said, did not provide “the slightest hint” that Clark had revealed confidential information to Purtill.
The ethical conduct of plaintiff’s attorneys also argued against disqualification, the appellate jurist said.
“Once the Carcione firm discovered that it had inadvertently retained the same expert, it was duty bound to refrain from talking directly with that expert until the court resolved the problem,” Robie explained. “The firm did exactly that.”
The case is Collins v. State of California, 04 S.O.S. 4661.
Copyright 2004, Metropolitan News Company