News & Developments
Texas Supreme Court Holds that Even Inadvertently Giving a Work Product Document to a Testifying Expert Waives Privilege
When providing documents to your testifying experts be mindful not to provide work product documents. If you do, you may be forced to either lose your protection or your expert – even if you gave the protected document to the expert by mistake. In late April 2007, the Texas Supreme Court held that a litigant who inadvertently provides a work product document to a testifying expert waives protection over the document unless that expert’s designation is withdrawn. In re Christus Spohn Hospital Kleberg, No. 04-0914, 2007 WL 1225351, at *5, (Tex. Apr. 27, 2007).
ABA House of Delegates Adopts Policy Proposed by Section of Litigation
At the ABA Annual Meeting, the House of Delegates adopted a Policy proposed by the Section of Litigation that urges the adoption of consistent rules governing the discoverability of expert reports.
U.S. Supreme Court rules that expert witness fees not recoverable to prevailing parents in an IDEA action
In Arlington Central School District Board of Education v. Murphy, the United States Supreme Court held that parents of disabled children that prevail in proceedings under the Individuals with Disabilities Education Act (“IDEA”) are not entitled to reimbursement for funds expended on experts. The applicable provision of the IDEA, 20 U.S.C. 1415(i)(3)(B), states that “[i]n an action or proceeding brought under this section, the court, in its discretion, may award reasonable attorneys’ fees as part of the costs to the parents of a child with a disability who is the prevailing party.”
Finding the Circuits split as to “whether Congress authorized the compensation of expert fees to prevailing parents in IDEA actions,” the Supreme Court granted certiorari. The majority ruled that such expenses are not recoverable by prevailing parents. Justice Alito, writing the majority opinion, stated the IDEA’s text “makes no mention of expert fees.” In reaching this conclusion, the majority held that the term “costs” as it appears in the statute is a “term of art” that did not include expert expenses. The majority recognized various reports and studies supported finding that expert costs were recoverable by prevailing parents, but ruled that “legislative history is simply not enough” to change the actual statutory language used. The majority also found that requiring school districts to reimburse prevailing parents for expert fees runs afoul of the Constitution’s Spending Clause, which permits Congress to set the terms and conditions on which it disburses Federal funds, because it does not “unambiguously authorize prevailing parents to recover expert fees.”
Retaining Law Firm Can Be Sued For Equitable Indemnity by Expert Witness Sued By Client
A California appellate court recently held that an expert witness who was sued by its client for professional negligence for providing inadequate testimony in the client's unsuccessful products liability case could assert an equitable indemnity claim against the client's trial attorney, who had not been similarly sued by the client for malpractice but had retained and insufficiently prepared the expert in the underlying case.
In Forensis Group, Inc.v. Frantz, Townsend & Foldenauer, 29 Cal.Rptr.3d 622, 624-25 (Cal. Ct. App. 2005), a testifying expert sought to bring an equitable indemnity claim against the law firm that had retained it as a testifying expert in an underlying wrongful death/products liability case. In the underlying suit, the expert's failure to properly account for certain safety standards in his report and deposition resulted in an adverse summary judgment against the client. The client later sued the expert for professional malpractice, although it did not also bring malpractice claims against its former law firm. In response, the expert asserted a cross-claim against the former law firm, arguing that it was entitled to equitable indemnity for the law firm's failure to adequately inform, prepare, and rehabilitate the expert in the underlying suit. The trial court granted summary judgment against the equitable indemnity claim, holding that the public policies protecting attorney-client loyalty and the confidentiality of client communications prohibited the claim.
The court of appeals reversed. The court noted that while there was in fact a general prohibition on claims for equitable indemnity when a client sues a former attorney for malpractice and the former attorney seeks equitable indemnity from a successor attorney, the policy considerations underlying that rule did not prevent the equitable indemnity claim in the present case. The court held that allowing the equitable indemnity claim between the expert and the law firm would not create a conflict of interest between the law firm and its former client because there was no danger that the law firm, in defending against the equitable indemnity claim, would have to breach either its duty of loyalty or confidentiality to the client. The law firm would not be required to show that the former client's case lacked merit or divulge any confidential client communications; rather, the law firm would only have to show that it provided proper information to the client and satisfied the relevant standards of care in preparing and utilizing the expert.
Contributed by Omar Kilany
Carrington, Coleman, Sloman & Blumenthal, LLP
Dallas, Texas
