Expert Witness Conflict Checks: How to Clear a Case Before You Open the Records

An attorney calls on a Tuesday with a nursing home case. The deadline is tight, the records are ready to send, and the expert says yes. Three weeks later, halfway through the chronology, someone notices that the facility is owned by the same company that runs the hospital where the expert works on weekends. Now the expert has read the plaintiff’s file, the retaining attorney has lost three weeks, and nobody is sure whether the expert can stay on the case.

Placing medical experts with attorneys is what we do at Med Legal Pro, and this is the problem we watch for most closely. A conflict found late is expensive. A conflict raised by opposing counsel at deposition is worse. The fix is not complicated, but it has to happen before the records are opened, and it has to be written down.

What courts ask when a party moves to disqualify an expert

Federal courts generally use a two-part test. In Koch Refining Co. v. Jennifer L. Boudreaux M/V, 85 F.3d 1178 (5th Cir. 1996), the Fifth Circuit framed it this way: first, was it objectively reasonable for the party who first retained the expert to believe a confidential relationship existed; and second, did that party disclose confidential or privileged information to the expert. Only if both answers are yes should the expert be disqualified.

In Koch, an expert who had been retained by one side, paid, and listed as a will call witness was later approached and retained by the other side. The district court disqualified him and the Fifth Circuit affirmed. In Wang Laboratories, Inc. v. Toshiba Corp., 762 F. Supp. 1246 (E.D. Va. 1991), both sides of a patent case engaged the same expert for the same purpose, and the court granted the motion to disqualify.

Those are not medical cases, but the test applies the same way to a nurse or physician expert. If you had a substantive call with plaintiff’s counsel about a case, heard their theory, or received records, you may be treated as theirs even if you were never formally retained. If defense counsel calls you on the same matter a month later, the answer should be no, and you should be able to show why.

Where conflicts hide in medical cases

The obvious conflict is the same case from the other side. In medical work, that is rarely the one that causes trouble. The harder ones look like this:

• Corporate ownership. A nursing facility, hospital or physician group sued under one name may share a parent company with the place you work or worked during the incident window. Long term care chains in particular operate through layers of separately named entities.
• Your own employment history. If you worked at the defendant facility, even years ago, opposing counsel will find it. What matters is when, in what role, and whether it overlaps the dates in the complaint.
• Prior work for or against a party. Reviewing for a defense firm last year does not bar you from working against its client this year, but switching sides against a party whose confidential information you received is a different matter.
• Relationships with the treating providers. Being asked to criticize a former colleague, a partner or someone you trained with is a credibility problem even when it is not a legal one.
• Opposing counsel you have worked with. Not a bar on its own, but something the retaining attorney should hear from you before deposition rather than during it.

A conflict check to run before you accept

Ask the retaining attorney for the full caption before any records are sent: every named party, every facility, the treating providers, opposing counsel and the date range of the care at issue. Then check each name against:

1. Every case you have reviewed, consulted on or testified in, and which side retained you.
2. Every employer and facility you have worked for, with the dates.
3. The parent companies and management companies of those facilities.
4. Your professional relationships with the treating providers.
5. Prior contact from the other side on this same matter, including calls that never led to a retainer.

Record the result, the date you ran it and what you checked. If something comes close, tell the attorney in writing and let them decide. A short note that says what you found and why you believe it is not a conflict protects everyone.

Why memory and a spreadsheet stop working

Most experts start with memory, then an inbox search, then a spreadsheet of cases. That works for the first dozen matters. It breaks down once you have years of reviews, several employers, facilities that changed owners, and attorneys who moved firms. It also produces no record. If opposing counsel asks how you screened the case, “I searched my email” is a weak answer.

Federal practice adds another reason to keep clean records. Under Federal Rule of Civil Procedure 26(a)(2)(B), a retained expert’s written report must include a list of all other cases in which the expert testified at trial or by deposition during the previous four years, along with a statement of the compensation paid for the work. The same case history that powers a conflict check is the history you will be asked to produce.

That is why we built ConflictPro, conflict check software for expert witnesses. It runs the check when a case comes in and again when party names change, compares the case against the expert’s case history, employers, facility dates and the companies that own those facilities, and writes a dated Cleared, Soft Flag or Hard Conflict result to the case. We use it on our own placements across medical malpractice, personal injury, nursing home and wrongful death cases. If you want to test your own eye first, try the Conflict Challenge: five incoming cases, a short history, and two hidden conflicts.

How Med Legal Pro helps

Every expert we place is screened for conflicts before records change hands, so retaining counsel is not the one who discovers the problem in week three. We work with plaintiff and defense counsel on medical malpractice, personal injury, nursing home and wrongful death cases. Attorneys can call 844-633-5345 or submit a case. Experts who want to run the same screen on their own practice can start a 14-day free trial of ConflictPro.

Sources

• Koch Refining Co. v. Jennifer L. Boudreaux M/V, 85 F.3d 1178 (5th Cir. 1996)
• Wang Laboratories, Inc. v. Toshiba Corp., 762 F. Supp. 1246 (E.D. Va. 1991)
• Fed. R. Civ. P. 26(a)(2)(B)

This article is for informational purposes only and is not legal advice. Disqualification standards vary by jurisdiction. Consult qualified counsel about the specific facts of any case.