Preparing The Hybrid Expert Witness For Deposition and For Trial
In earlier editions of this newsletter, you have read my presentations about developing in-house experts to bolster litigation and to help prevent litigation at your companies. In-house engineers and other employees who have expertise with respect to the product can be very valuable to the defense team and can really make a difference in winning a case. Some of my toughest victories have occurred using in-house experts who we refer to now as the hybrid witness.
A hybrid witness also has some drawbacks and you have to be careful in how you use them. From the point of view strategy, discoverability, and access from the plaintiff’s attorney these witnesses produce unique legal questions. This article will explore some of those issues, and we will continue to discuss this in later articles. Perhaps the most difficult aspect of working with hybrid witness, relates to the attorney-client communication privilege. In many states any conversations between a lawyer and an employee of his client are absolutely privileged and not discoverable. In other states that adhere to the “control group” theory, communications with employees who are management and involved in the control and direction of the decision making of the litigation are similarly protected. Thus an attorney and a chief engineer for a company can have a very candid, frank and fully revealing conversation about a case, issues, or about problems with a product without fear of them being discovered.
Unfortunately once an employee becomes a designated expert witness, there is some question in many states about how much protection there is for these communications. Generally communications with an expert retained by an attorney for the purposes of testifying at trial are not protected. Under most circumstances courts will grant at least limited, if not complete access to that expert’s file and, in most cases, the expert will be required to divulge to the other side his/her communications with counsel.
What happens when that same chief engineer you spoke with in September, becomes your testifying expert witness for your case in the following January? The answer is “it depends.” You can generally expect that any communications with that employee following the designation of that employee as an expert witness are likely to be discoverable. Perhaps, the most interesting part, are the communications that occurred before their designation. This creates a difficult problem because you have retained and used this in-house expert basically because of the amount of pre-accident knowledge that they have about the product, its design, and manufacture. It is difficult to stand up in court in a Motion Session and tell the judge that they have “only been an expert since they have been designated” and maintain that communication with them prior to the actual designation and Answers to Expert Interrogatories should be privileged as an attorney-client communication. They are involved with testifying in the case precisely because of their prior knowledge. At the same time, not allowing such witnesses to talk with the companies’ lawyers about the case, in advance of their designation, would certainly frustrate the ability to bring a zealous defense to court.
The risk of having some of those conversations discovered may be outweighed by the quality of the person’s testimony or the knowledge with which they enlighten the jury at the trial. Nonetheless, this is a risk that needs to be evaluated.
In-house experts may develop knowledge about other product lines or other information about the company that an outside expert would never have. Typically a knowledgeable and hard working in-house expert is likely to know about more than just the typical product line that he/she is testifying regarding. They are often in positions to evaluate many different types of products and to work on different types of problems. Putting an in-house expert on the stand opens up those kinds of issues to questioning. Not only can that expert be questioned about the product involved with this matter, but there is a potential, at least in deposition, for inquiry about similar products and other kinds of products with similar issues. Those items may or may not come into evidence at trial, but the discovery inquiry into them is a certainty. Before deciding whether to retain a hybrid-witness you should always check to see what their overall knowledge is about product lines and issues with the company.
Involving the hybrid-witness in various kinds of experiments with your outside experts can also be risky. Before designation, if an outside expert’s experiment goes poorly, you can simply replace that expert with someone else. This will not be true with respect to the in-house person. Once they see an event they are charged with the knowledge of this event not just for this case but for the rest of their career with the company. Very careful thought has to be given to involving hybrid-witnesses in experiments, particularly when there is some risk of failure. At the same time these witnesses will probably best know how to test a product and how a product will perform under certain circumstances. Again, it is a question of balancing the risks.
Another draw back to using the hybrid-witnesses is the fact that they may be subject to two separate deposition experiences. You may very well designate a witness you intend to use as your hybrid-expert as a person most knowledgeable on a 30 (b) (6) deposition. If you do that in a case, you may then also have to subject that witness to deposition once you designate him/her as a testifying expert. This may give a plaintiff’s attorney “a second bite at the apple” with respect to earlier questions asked in discovery. While you can certainly be diligent and object to those kinds of questions, most judges will allow some duplication of prior questions and follow-up questions when the witness is presented. In addition, this gives the plaintiff’s attorney an opportunity to ask the hybrid expert about all the things that they have done since they have been deposed. Once again, the risk verses the benefit has to be balanced, but there are many hybrid-witnesses that make it clearly worth the risk. Hybrid-witnesses are sometimes the most powerful tool that can be used with the jury in trying a complex product liability case. They know the products better than anyone and they feel invested in them and can speak strongly for what was done regarding them. Over the years I have credited several in-house experts as playing a critical role in winning cases. Like any other strategy in a case, it has the risks and benefits have to be measured and weighed before going forward. In many instances, the benefits far out weigh the risks involved.