Thinking about retaining Dr. Charles F. Landers (down here in San Diego) as an expert witness in your medical malpractice case? Wondering what might happen to you if your expert doesn't run a proper conflict check before talking to you? Then read this case.
Briefly put, here, defendant retained Dr. Landers as a consulting expert, and thereafter, without knowledge of his employment by defendant, plaintiff's counsel contacted Dr. Landers to retain him as a testifying expert. Plaintiff's counsel asked Dr. Landers if he had a conflict, but Landers replied that he didn't. Plaintiff's counsel then sent Dr. Landers some documents, and designated him as a testifying expert, at which point defendants moved to disqualify plaintiff's counsel. And Judge Hayes granted the motion.
Ultimately, Justice McDonald reverses the disqualification order. But this was a major hassle (and distraction) for plaintiff's counsel, and could (and should) have been avoided.
Lesson of the day: Make sure that your expert doesn't have a conflict. Especially when you're hiring someone (like Dr. Landers) who serves as an expert a lot. Otherwise you could be in a world of trouble.
P.S. - Hat's off to Robert Martin Daniels, a recent graduate of USD Law, who was part of the team that got the disqualification order reversed. Ditto for Kenneth Mendel -- a less recent graduate of USD -- for getting the order in the first place. It makes my day as a professional responsibility professor to see two USD students battle it out in an ethics fight!
