Is it Ethical for Experts to Work for Both Sides?

A rheumatologist in Texas sent in a question concerning expert testimony. We submitted the query to two personal-injury trial attorneys and present both the question and the attorneys' responses below. One respondent is Robert A. Clifford (RAC), a Chicago-area plaintiffs' attorney concentrating in product liability, personal injury, medical malpractice and aviation law.

Qt a deposition in a breast implant suit for which I was acting as the plaintiff's expert, lawyers for the defendant manufacturer asked me if, from time to time, I would consider being an independent medical examiner for it in unrelated breast implant suits (i.e., involving the same defendant but not the same plaintiffs). Is what was being proposed ethical/legal behavior for a medical expert?

A: Our reader poses an interesting question that intermixes potentially conflicting principles of law and medical ethics - inquiring about whether it is appropriate to serve for both sides of what may turn out to be the same issue. Let's first examine the legal side of this question.

Courts have allowed expert witnesses who are initially retained by one party to later testify as to opinions as well as facts on behalf of the other party, even in the same litigation. Graham v. Gielchinsky, 574 A.2d 496 (N.J. App. 1990); Akers v. The Atchinson, Topeka and Santa Fe Railway Co., 543 N.E.2d 939 (III. App., 1st Dist., 1989). The arguments are that one party does not have a proprietary right to the expert's testimony and that the interest in ascertaining the truth outweighs any expectation of allegiance regarding the expert's conduct. In other words, no one "owns" an expert. People v. Speck, 242 N.E.2d 208 (III. 1968), rev'd on other grounds, 403 U.S. 946 (1971). Generally, though, medical experts are hired to evaluate records and are not treating physicians of a party to the lawsuit.

Such a "cross-over" may be prevented upon a showing by the party initially retaining the expert of an improper disclosure of any work product. It appears, though, that only a handful of cases protect the parties from an expert's switching sides in a medical malpractice action and , then, only to prevent the breakdown of the physician-patient relationship, to avoid detracting from the patient's well-being or to otherwise avoid compromising the medical expert's ethical obligations. City and Country of San Francisco v. Superior Court, 231 P .2d 26 (Cal. 1951). Cf., Gugliano v. Levy, 24 App. Div.2d 591, 262 N.Y.S. 2d 372 (1965), where the court did not wany to compel an expert's testimony for fear of thrusting the expert into the position of working for both sides as well as violating the ethical obligation not to accept a retainer from an opponent.

Any employment relationship should, above all, consider the protection of the physician-patient privilege. The fiduciary nature of this relationship should preclude a doctor from testifying against his patient as an expert in a medical malpractice action strictly for ethical reasons. See, Piller v. Kovarsky, 476 A.2d 1279 (N.J. Super. 1984). However, a medical expert switching sides in unrelated litigation appears to be a common practice, and one that is litigated infrequently.

Be prepared that any opinions, as well as interest, bias and financial interest in the litigation may be cross-examined, and such testimony used to impeach the medical expert's credibility. Courts have wide discretion in determining on what an expert may be questioned. In Texas, the state of the doctor's residence who posed the question here, courts have allowed a medical witness to be questioned on his dual relation with plaintiffs and defendants, and left it up to the jury to evaluate any bias or prejudice. Young v. Texas & Pacific Railway Co., 347 S.W.2d 345 (Tex. 1961). Generally, courts reason that medical experts may be cross-examined concerning motives and feelings, but not about cases having no relation to the litigation. See, e.g., Traders & General Insurance Co. v. Robinson, 222 S.W.2d 266 (Tex. Civ. App. 1949). Consistency in opinions may prove to be the key to credibility when cast as a so-called "professional witness."

A number of jurisdictions may have rules, regulations, constitutional provisions or legislative enactment governing this subject. If in federal court, Federal Rule of Civil Procedure 26(b)(4) should be checked. The expert should consult the appropriate authorities before accepting any employment involving opposing parties.

Finally, on the medical ethics side, I must confess that my cynical sensitivities were activated by the defentant's alluring offer of employment. Does the defendant really wish to retain the doctor to take advantage of his incredible skill and expertise in the area, or is he being retained so as to put him in a position of compromise to be set up for future exclusion? In litigation involving automotive, aviation and mechanical engineering products, several experts have been exposed to similar offers of employment, only to be on the other side of a motion to bar because of the purported disclosure of proprietary information.

Thus, my advice to the good doctor is to get a written agreement that a) leaves unfettered the right to testify against the manufacturer, and b) ensures that his right to speak on behalf of his direct patients, and never against them, remains inviolate.