New Rules of War in the Battle of the Experts: Amending the Expert Witness Disqualification Test for Conflicts of Interest

In civil litigation, the big business of retaining experts has raised concerns about the integrity of the adversarial process and undermined the role that expert testimony plays at trial. Due to a rising demand for expert testimony, it is common for the same expert to testify for opposing clients. When a client hires an expert who has been previously retained by that client’s adversary, a conflict of interest arises. Such experts may share confidential information with their new client to the detriment of the former client—triggering the expert disqualification test for conflicts of interest. Most state and federal courts do not conform to one set of controlling principles to analyze the judicially created expert disqualification test. The lack of statutory guidance, coupled with judicial discord regarding the appropriate standard for expert disqualification, threatens the integrity of our judicial system, imposes costly uncertainty on litigants, and fails to preserve client confidentiality. To alleviate the consequences stemming from judicial dissonance in the area of expert disqualification, this note advocates for judicial reform through the modification of the current expert disqualification test. The proposed test provides a narrowly tailored, two-prong inquiry that would warrant disqualification of an expert only if the expert was both in a contractual relationship with the moving party and the moving party disclosed confidential or privileged information to the expert that significantly related to the subject matter of the litigation. This proposal would adequately balance the desire to preserve relevant expert testimony against the need to protect clients’ confidentiality