Risk Update

Conflicts News — Expert Witness Disqualified, Judges’ Former Firm Work Doesn’t Demand Recusal

Va. Judge Nixes Defense’s Expert Witness, Finding Previous Work With Opposing Counsel Created ‘Serious’ Conflict of Interest” —

  • “A federal court in Virginia has ruled that an expert witness for the defense is conflicted out of a personal injury lawsuit because she previously discussed serving as an expert in a Pennsylvania case with plaintiffs counsel, who shared privileged communications and attorney work product about the Virginia matter.”
  • “According to the Oct. 10 opinion by U.S. District Judge Thomas T. Cullen of the Western District of Virginia, the John Doe plaintiff was as student at Turner Ashby High School when then-principal Phil Judd and school guidance counselor Sandy King allegedly failed to protect him from sexual abuse at the hands of former drama teacher Wesley Dunlap, according to the opinion.”
  • “Before the court was Doe’s motion to disqualify Dr. Charol Shakeshaft from serving as an expert witness for the defendants, Judd, King, Dunlap and the Rockingham County School Board, about sexual-assault prevention and training.”
  • “Doe argued his counsel had previously engaged Shakeshaft to serve as an expert witness for the plaintiffs in the case, disclosing privileged communications and attorney work product to her, and therefore the court should bar Shakeshaft from testifying.”
  • “According to the court, Doe’s counsel contacted Shakeshaft to gauge her interest in serving as Doe’s expert witness… Shakeshaft and Doe’s counsel went on to speak over the phone, where Doe’s counsel argued they revealed ‘a trove of confidential information about this case,’ including privileged attorney-client communications and attorney work product, according to the opinion.”
  • “Doe contended that, during the call, Shakeshaft confirmed she didn’t have any conflicts that would preclude her from serving as an expert in either of the litigations, leading counsel to explain both cases in detail, including confidential and privileged information, the opinion said.”
  • “Shakeshaft claimed that little-to-no substantive information about the Virginia case was shared, including no privileged or protected material, with defendants arguing ‘scant details’ were provided about the Virginia case, including no confidential or privileged information, according to the opinion.”
  • “But the court held it was undisputed that Doe’s counsel worked with Shakeshaft on the Pennsylvania case, with counsel claiming it occasionally discussed the Virginia matter during this time. Doe’s counsel went on to pay Shakeshaft for the Pennsylvania expert report.”
  • “Defense counsel went on to execute a written agreement with Shakeshaft for her to serve as their expert, paying her a $2,500 retainer. Shakeshaft billed defendants for 58 hours spent reviewing documents and drafting the report, the court said.”
  • “After learning that the defendants had retained Shakeshaft and intended to use her as an expert, Doe’s counsel filed a motion to disqualify her. The court granted the motion, concluding that a confidential relationship existed and confidential information had been shared.”
  • “‘In support of her representation to the court to this effect, Plaintiff’s counsel provided an affidavit and six-page in camera letter that describes, in detail, the nature and extent of the information shared. This included the substance of two key, privileged communications with her client about a determinative issue in the case,’ the court said. ‘Plaintiff’s counsel also attests that she shared with Dr. Shakeshaft details of her litigation strategy.'”

Judge’s Recusal Isn’t Needed After Ex-Firm’s Deepwater Cases” —

  • “A US judge did not need to recuse himself from cases over the Deepwater Horizon oil spill despite his former law firm’s previous work on the case, a US Court of Appeals for the Fifth Circuit panel ruled.”
  • “The New Orleans-based appeals court on Friday affirmed the decision by US District Judge Barry Ashe of the Eastern District of Louisiana to not step away from the cases. The appellate panel said there was ‘no evidence’ that Ashe previously worked on the litigation when New Orleans law firm Stone Pigman represented a decade earlier Cameron International, the manufacturer of a blowout preventer that failed ahead of the oil spill.”
  • “The appeals court on Friday said that while Cameron International was ‘directly adverse’ to the plaintiffs in a 2013 liability trial, it is not involved in the ongoing litigation. It also said that Ashe’s longtime partnership at the law firm was well known, but that the parties did not move to disqualify him from the cases until he rejected the inclusion of an expert report in the litigation.”
  • “‘Nonetheless, as the arguments on this appeal support, potential conflicts of interest must be taken seriously by every member of the judiciary,’ the court wrote. ‘The litigants and the public need to be confident in the impartiality of those who will decide legal disputes. This appeal is fair warning to each of us of the importance of assuring the reality and appearance of that impartiality.'”