339 F.Supp.2d 196 (2004) | Cited 4 times | D. Massachusetts | October 12, 2004


I. Nature of the Proceeding

On April 2, 2002, this case was referred to me by consent ofthe parties for all further proceedings in accordance with28 U.S.C. § 636(c) and Fed.R. Civ. P. 73. This Order addressesdefendant's motion to disqualify plaintiff's expert, NicholasDembsey, Ph.D., or in the alternative, to extend time forcompletion of his expert deposition (Docket No. 36).

II. Nature of the Case

This is a products liability case involving an allegedexplosion of a Bic lighter which resulted in injuries to theminor Plaintiff. Defendant Bic Corporation ("Bic") moves todisqualify one of the experts retained by the plaintiff, arguingthat disqualification is proper as the expert previously servedas an expert for Bic and it has executed a non-disclosureagreement with the expert. Plaintiff argues that the expert'sinvolvement with Bic was insignificant and he has not had anycontact with Bic since 1999.

III. Background

In or around August 1996, Bic retained Nicholas Dembsey, Ph.D.,to provide consultant/expert witness services in connection withthe defense of a suit then pending against Bic. Mr. Dembsey is anAssociate Professor of Fire Protection Engineering in the Centerfor Firesafety Studies at the Worcester Polytechic Institute, aswell as an independent consultant in fire dynamics. It isundisputed that prior to his retention as an expert by Bic, Mr.Dembsey signed a Confidential Non-Disclosure Agreement with Bicon August 28, 1996. The Agreement provides, in pertinent part,that Mr. Dembsey may have access to certain information that maybe confidential or proprietary in nature and that he agrees notto disclose or use the information outside of Bic matters. Bicasserts that, in connection with the services rendered by Mr.Dembsey as a previously engaged expert and consultant, Bicprovided Mr. Dembsey with information and documentation which wasnonpublic, confidential and proprietary in nature. Bic furtherasserts that these disclosures included information relating toBic's lighter manufacturing processes, testing and litigationstrategy.

This case was removed from Worcester Superior Court to thiscourt on March 4, 2002. Mr. Dembsey was contacted by theplaintiff's attorney and thereafter, retained as an expertregarding claims by the plaintiff in this case. In his affidavit, Mr. Dembsey states that all of the materials he has reviewedconcerning this matter were provided by the plaintiff's attorney.Mr. Dembsey further states that he did not review, consult orutilize any research or privileged information he may have beenexposed to during his consultation with Bic. Mr. Dembsey contendsthat his opinion in this matter was based solely on the facts ofthe litigation and his expertise with fire dynamics. Mr. Dembseydenies having any contact with Bic since July, 1999, a fact notdisputed by Bic.

On March 1, 2004, plaintiffs made an expert disclosure inaccordance with Rule 26(a)(2) identifying Mr. Dembsey as one ofthe potential experts to be used at trial, along with a copy ofan email message from Mr. Dembsey setting forth his opinion onthe case. Following the disclosure, on March 3, 2004, plaintiffsent a report signed by Mr. Dembsey in which he reiterated thesame opinion as in the email message, along with a copy of Mr.Dembsey's curriculum vitae. Bic responded by notifying plaintiffof its objection to Mr. Dembsey serving as his expert witness andfiling this motion to disqualify Mr. Dembsey as an expert.

IV. Discussion

A. Bic Corporation's Motion to Disqualify Plaintiff's Expert, Nicholas Dembsey, Ph.D.

Although courts are generally reluctant to disqualify expertwitnesses, see Palmer v. Ozbek, 144 F.R.D. 66, 67 (D.Md.1992), federal courts have inherent authority to disqualifyexperts "if necessary to preserve public confidence in the fairness andintegrity of the judicial system." Koch Refining Co. v. JenniferL. Boudreaux, M/V, 85 F.3d 1178, 1181 (5th Cir. 1996); WangLaboratories, Inc. v. Toshiba Corp., 762 F.Supp. 1246, 1248(E.D.Va. 1991); Campbell Industries v. M/V Gemini, 619 F.2d 24,27 (9th Cir. 1980) ("A district court is vested with broaddiscretion to make discovery and evidentiary rulings conducive tothe conduct of a fair and orderly trial . . . includingdisqualifying expert testimony."); Paul v. Rawlings SportingGoods, 123 F.R.D. 271, 278 (S.D.Ohio 1988). Disqualification ofan expert is appropriate when a party retains an expert whopreviously worked for an adversary and received confidentialinformation from the first client. See Erickson v. NewmarCorp., 87 F.3d 298, 300 (9th Cir. 1996) (acknowledging that in a"switching sides" case, the "court may grant the original hiringparty's motion to disqualify the expert when it is determinedthat the expert is in possession of confidential informationreceived from the first client."); Koch Refining Co. v.Boudreaux, 85 F.3d at 1180 (stating that there is a "clear casefor disqualification" when an expert switches sides in the samelitigation after receiving confidential information from theadverse party pursuant to its earlier retention).

Although most expert disqualification cases involve atestifying expert, courts employ the same test in determiningwhether to disqualify a consulting expert. See Great LakesDredge & Dock Co. v. Harnischfeger Corp., 734 F.Supp. 334(N.D.Ill. 1990) (denying motion to disqualify expert consultant under thesame test used when considering disqualifying a testifying expertfinding that there was no "leakage" of information betweendefendants' experts and plaintiff's expert both of whom workedfor the same company.); Conforti & Eisele, Inc. v. New Jersey,170 N.J.Super. 64, 405 A.2d 487 (1979).

To resolve a motion to disqualify an expert in cases other thanwhere an expert has clearly switched sides, the court undertakesa two-step inquiry. Stencel v. Fairchild Corp.,174 F.Supp.2d 1080, 1083 (D.Ca. 2001); Koch Refining Co. v. Boudreaux,85 F.3d at 1181. The court must determine whether, (1) it wasobjectively reasonable for the moving party to believe that ithad a confidential relationship with the expert; and (2) whetherthe moving party disclosed confidential information to the expertthat is relevant to the current litigation. See Paul v.Rawlings Sporting Goods Co., 123 F.R.D. at 278; Wang v. ToshibaCorp., 762 F.Supp. at 1248. "Affirmative answers to bothinquiries compel disqualification." Id. However,disqualification may not be warranted even if the expert witnesshas signed a confidentiality agreement with the adversary. SeePaul v. Rawlings Sporting Goods Co., 123 F.R.D. at 278("[T]here may be situations where, despite the existence of aformal contractual relationship, so little of substance occursduring the course of the relationship that neither the integrityof the trial process, nor the interests of the party who retainedthe expert, would be served by blanket disqualification.").

In analyzing the disqualification issue, the court alsobalances competing policy objectives and considers concerns offundamental fairness. Koch v. Refining Co. v. Boudreaux,85 F.3d at 1182. "`The policy objectives favoring disqualificationinclude preventing conflicts of interest and maintaining theintegrity of the judicial process.'" Id. (quoting EnglishFeedlot v. Norden Labs., Inc., 833 F.Supp. 1498, 1504 (D.Col.1993). Policies disfavoring disqualification include "ensuringthat parties have access to expert witnesses who possessspecialized knowledge and allowing experts to pursue theirprofessional calling." Id. (citing English Feedlot v. NordenLabs., 833 F.Supp. at 1504-05).

1. Confidential Relationship

The party seeking disqualification bears the burden of showingthat it was reasonable for it to believe that a confidentialrelationship existed, see Hewlett-Packard Co. v. EMC Corp.,330 F.Supp.2d 1087, 1093 (D.N.D.Ca. 2004), citing Mayer v.Dell, 139 F.R.D. 1, 3 (D.D.C. 1991), and "whether therelationship developed into a matter sufficiently substantial tomake disqualification or some other judicial remedy appropriate,"Paul v. Rawlings Sporting Goods Co., 123 F.R.D. at 278. TheCourt may consider several factors, including: whether the relationship was one of long standing and involved frequent contacts instead of a single interaction with the expert, whether the expert is to be called as a witness in the underlying case, whether alleged confidential communications were from expert to party or vice-versa, and whether the moving party funded or directed the formation of the opinion to be offered at trial.Stencel v. Fairchild Corp., 174 F.Supp.2d at 1083. "Otherfactors include whether the parties entered into a formalconfidentiality agreement, whether the expert was retained toassist in the litigation, the number of meetings between theexpert and the attorneys, whether work product was discussed ordocuments were provided to the expert, whether the expert waspaid a fee, whether the expert was asked to agree not to discussthe case with the opposing parties or counsel, and whether theexpert derived any of his specific ideas from work done under thedirection of the retaining party." Hewlett-Packard v. EMCCorp., 330 F.Supp.2d at 1093. See also, Mayer v. Dell,139 F.R.D. at 2-3; Paul v. Rawlings Sporting Goods Co.,123 F.R.D. at 280. The emphasis "is not on whether the expert was retainedper se but whether there was a relationship that would permit thelitigant reasonably to expect that any communications would bemaintained in confidence." Hewlett-Packard v. EMC Corp.,330 F.Supp.2d at 1093, citing In re Ambassador Group, Inc.,Litigation, 879 F.Supp. 237, 243 (E.D.N.Y 1994).

2. Confidential Information

Confidential information essentially is information "of eitherparticular significance or [that] which can be readily identifiedas either attorney work product or within the scope of theattorney-client privilege." Hewlett Packard v. EMC Corp., 330 F.Supp.2d at 1094 quoting Paul v. Rawlings Sporting Goods Co.,123 F.R.D. at 279; Mayer v. Dell, 139 F.R.D. at 3. It couldinclude discussion of the party's "strategy in the litigation,the kinds of experts [the party] expected to retain, [theparty's] view of the strengths and weaknesses of each side, therole of each of the [party's] experts to be hired and anticipateddefenses." Hewlett-Packard v. EMC Corp., 330 F.Supp.2d at 1094;Mayer v. Dell, 139 F.R.D. at 4. At least one court hasconcluded that "[c]ommunication based upon technical informationas opposed to legal advice is not considered privileged." NikkalIndus., Ltd. v. Salton, Inc., 689 F.Supp. 187, 191-92 (S.D.N.Y.1988).

Applying this analysis to the facts of this case, I believethat Bic has shown that a sufficient confidential relationshipexisted between it and Mr. Dembsey concerning Bic's proprietaryand confidential information, that is, relating to themanufacturing and design of its products. He is thereforerestricted from using or disclosing any information which can beso defined. Additionally, Mr. Dembsey is restricted fromcommunicating any information concerning litigation strategy towhich he was exposed during his consultation with Bic. TheAgreement signed by Mr. Dembsey before he was retained by Bicrequires him to do so, and agreements of this type are generallyenforceable. See Wang v. CFR Associates, 125 F.R.D. 10, 13(D.Mass. 1989). The relationship between Bic and Mr. Dembsey wassignificant in that it involved his work as a consultant and asan expert witness over the course of several years.

Notwithstanding the Agreement, there appears to be little ornothing in the way of confidential information relevant to thecurrent litigation to which Mr. Dembsey was exposed. It isundisputed that the parties never communicated on matters of anysubstance relating to the specifics of this case. It is furtherundisputed that the last communication between Bic and Mr.Dembsey was in July of 1999, one year before the plaintiff inthis case sustained his injury. As in the oft-cited Paul case,Mr. Dembsey did not develop any expertise in the area of firesafety from work done under Bic's direction or using its funds.See Paul v. Rawlings Sporting Goods Co., 123 F.R.D. at 280.Accordingly, I believe that Bic has not disclosed confidentialinformation to Mr. Dembsey that is specific to the currentlitigation and I will not disqualify him as an expert for theplaintiff.

While Bic has not demonstrated that I should allow its motionto disqualify Mr. Dembsey as an expert witness for the plaintiff,I am compelled to uphold the Agreement with respect to anyconfidential and proprietary information Mr. Dembsey could haveobtained during his relationship with Bic. See Wang v. CFRAssociates, 125 F.R.D. at 13. I have the authority, pursuant toFed.R. Civ. P. 26(c)(7) to prohibit the disclosure ofconfidential research, development, or commercial information.Id. Therefore, I will prohibit Mr. Dembsey from testifying orutilizing for purposes of this litigation, any information hereceived during the years of his affiliation with Bic. Because of Mr. Dembsey'sextensive curriculum vitae in the area of fire science and sinceno conflict of interest exists with respect to the facts ofplaintiff's case, Mr. Dembsey may be an appropriate and usefulwitness for the plaintiff.

V. Conclusion

1. Defendant Bic Corporation's Motion to Disqualify Plaintiff'sExpert, Nicholas Dembsey, Ph.D., (Docket No. 36) is denied, butdefendant's motion, in the alternative, to Extend Time for theCompletion of His Expert Deposition, is allowed and thatdeposition shall be completed by September 30, 2004.

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