A product liability plaintiff seeking to explore al- leged bias by two experts retained by Ford Motor Co. may not depose the experts’ employers, the Texas Supreme Court held March 28, vacating a trial court ruling that sanctioned a ‘‘fishing expedition’’ (In re Ford Motor Co., 2014 BL 88999, Tex., No. 12-1000, 3/28/14).
‘‘Such a fishing expedition, seeking sensitive infor- mation covering 12 years, is just the type of overbroad discovery the rules are intended to prevent,’’ the top court said in a ruling that conditionally granted Ford’s petition for a writ of mandamus.
One attorney told BNA the takeaway is for attorneys to counsel experts to answer questions about money and bias.
The per curiam opinion rebuffs an effort by plaintiff Saul Morales to obtain corporate-representative deposi- tions from litigation consultants Exponent Inc. and Carr Engineering Inc. on 17 topics in a bid to show defen- dants’ experts Erin Harley and Hugh Mauldin were bi- ased in favor of Ford and other automobile manufactur- ers.
The plaintiff, who contended the defendants opened the door for this information when their counsel sug- gested the experts may not have information on their employers’ earnings and billing policies, sought to de- termine the frequency with which the two experts testi- fied for design-defect defendants. They also sought de- tailed financial and business information for all cases Exponent and Carr Engineering handled for Ford or any other automobile manufacturer from 2000 to 2011.
The plaintiff also argued that because the experts’ re- ports were prepared with their employers’ organiza- tional resources, ‘‘oral depositions should not be limited to the individual designated to testify in a case but should also be allowed of the organization employing that individual.’’
The underlying suit against Ford and automobile dealership Ken Stoepel Ford Inc. contends a design de- fect in a 2004 Ford Crown Victoria Police Interceptor al- lowed a police officer to place the gear-shift selector be- tween park and reverse.
More on Exploring Expert Bias in Discovery
Attorneys John F. Kuppens and John M. Fitzpat- rick have written articles exploring bias in expert witnesses through discovery:
s ‘‘Money Talks: Exposing Bias Using Expert Wit- ness Fee Arrangements,’’ Kupens, IADC’s Product Li- ability Committee Newsletter (January 2012)
s ‘‘Digging Deep to Attack Bias of Plaintiff Ex- perts,’’ Fitzpatrick, DRI (April 2012)
This alleged flaw caused the vehicle to go into an ‘‘idle-powered reverse’’ and drive over the plaintiff, who was positioned near the vehicle and in the process of being arrested for suspected drunken driving, accord- ing to court documents.
Discovery ‘Not Limitless.’ Expert witness fee arrange- ments are an area worthy of discovery to explore the possibility of bias, however, ‘‘discovery into an expert’s potential bias is dependent on the factual circumstances—and is not limitless,’’ John F. Kuppens, a partner at Nelson Mullins Riley & Scarborough in Co- lumbia, S.C., who focuses on consumer product risk prevention and regulatory counseling, told BNA in an April 4 e-mail.
Kuppens, who co-authored, ‘‘Money Talks: Exposing Bias Using Expert Witness Fee Arrangements,’’ a 2012 paper for the International Association of Defense Counsel, said this case went well beyond the typical cir- cumstance of seeking discovery about experts’ fee ar- rangements with the client. ‘‘Plaintiff’s request went be- yond the experts’ work for Ford in this case,’’ he said, and agreed with the court’s characterization of this re- quest as a ‘‘fishing expedition.’’
‘‘Absent some extraordinary circumstances not pres- ent here, the traditional methods for obtaining informa- tion on potential bias—expert disclosures, expert re- ports, and expert witness depositions—are adequate,’’ Kuppens said.
John M. Fitzpatrick, a partner at Wheeler Trigg O’Donnell in Denver specializing in ‘‘high exposure’’ product liability and toxic tort cases, told BNA in an
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April 2 e-mail that the ruling shouldn’t be viewed as a surprise, ‘‘given how overbroad the request was to de- pose the employers of each expert.’’
Fitzpatrick, who has tried more than 220 cases to ver- dict in 40 states, says the lesson here for attorneys is to always counsel experts to answer questions about money and bias.
‘‘Lawyers MUST prepare their experts to be ready for questions on bias, and should ask sample questions to [the] experts,’’ he said.
‘‘If the expert is reluctant to answer—tell him or her to go look it up and don’t hide behind ‘I don’t know.’ That is a recipe for disaster and opens up the door to what happened in this case,’’ Fitzpatrick said.
Dangers of ‘Expansive Discovery.’ The deposition no- tices highlight the danger of permitting ‘‘expansive dis- covery,’’ the state supreme court said, referring to warnings the court first issued in Ex parte Shepperd, 513 S.W. 2d 813 (Tex. 1974), when it cautioned that ex- pansive discovery into testifying experts could permit witnesses to be subjected to harassment and might ‘‘discourage reputable experts.’’
The ruling distinguished Walker v. Packer, 827 S.W.2d 833 (Tex. 1992), where the court allowed dis- covery beyond the individual expert’s deposition. In Walker, extrinsic evidence, discovered after the ex- pert’s deposition, put the expert’s credibility in doubt, the court explained.
‘‘Unlike Walker, neither expert’s credibility has been impugned in this case,’’ the court said.
The court said the experts already had provided much of what the plaintiff sought. Harley testified that only 5 percent of the cases she handles are for plain- tiffs, and that she has never testified against an automo- bile manufacturer.
Mauldin testified that half of Carr Engineering’s work is done for Ford, that he previously worked for Ford, and that he never admitted in a ‘‘park-to-reverse’’ case, such as this one, that a vehicle had a design de- fect.
The decision directed the Texas District Court to va- cate its discovery order.
A spokesperson for Ford, Kristina Adamski, told Bloomberg BNA in an April 1 e-mail that the court ‘‘cor- rectly decided that discovery under the Texas rules is limited to prevent unrestricted searches for information about an expert’s alleged bias.’’
Preparation of Experts Vital. According to Fitzpatrick, the ruling was well-taken, because courts rarely allow production of tax records, and are reluctant to view an expert’s income from litigation as an indicator of bias.
Courts know that a lawyer would ‘‘love to argue’’ that an expert earning $900,000 from a client is more likely to provide favorable testimony, and judges don’t want to go down that path, Fitzpatrick said.
Fitzpatrick, who has retained Harley in previous cases, added that the salary of experts like Harley doesn’t depend on an expert’s ‘‘win-loss record.’’
Allowing depositions into an expert’s employer could also prove enormously costly to consultants like Expo- nent, which provide litigation experts in numerous fields, Fitzpatrick said.
This line of questioning ‘‘potentially could allow dis- covery into how much Exponent makes yearly from all their experts—and that starts getting into very confi- dential information,’’ he said.
Fitzaptrick, who authored a 2012 paper for the De- fense Research Institute, ‘‘Digging Deep to Attack Bias of Plaintiff Experts,’’ offered specific advice for litiga- tors on preparing experts for depositions.
Experts must be prepared to answer several probing questions:
s Either what percentage of your yearly income comes from litigation, or what percentage is derived from work for plaintiffs compared to defendants?
s If currently testifying for a plaintiff/defendant, have you ever testified for the other side? If so, in how many states have you given depositions?
s How many depositions and trials do you partici- pate in each year?
s How many hours have you billed in this case?
‘‘In other words—don’t hide how much work the ex- pert does in litigation,’’ Fitzpatrick said.
‘‘Be forthcoming and the expert will avoid unneces- sary fishing expeditions like this lawyer tried to do.’’
Ford’s attorneys declined to comment, deferring to Ford’s spokesperson. Plaintiff’s attorneys didn’t re- spond to requests for comments.
Plaintiff’s attorneys include Richard W. Hunnicutt III and David McQuade Leibowitz, both in San Antonio.
The defendants’ attorneys include David J. Schenck, Christopher D. Kratovil and Alison R. Ashmore of Dykema Gossett in Dallas.