English Feedlot, Inc. v. Norden Laboratories, Inc., Civ. A. No. 92-B-2076.

• Decision Date: 07 October 1993
• Docket Number: Civ. A. No. 92-B-2076.
• Citation: 833 F. Supp. 1498
• Parties: ENGLISH FEEDLOT, INC., Plaintiff, v. NORDEN LABORATORIES, INC., and its successor in interest, SmithKline Beecham Animal Health, Inc., a Nebraska corporation, SmithKline Beecham Clinical Laboratories, Inc., a South Dakota corporation, and SmithKline Beecham Corporation, a Pennsylvania corporation, Defendants.
• Court: U.S. Court of Appeals — Seventh Circuit

833 F. Supp. 1498

ENGLISH FEEDLOT, INC., Plaintiff, v. NORDEN LABORATORIES, INC., and its successor in interest, SmithKline Beecham Animal Health, Inc., a Nebraska corporation, SmithKline Beecham Clinical Laboratories, Inc., a South Dakota corporation, and SmithKline Beecham Corporation, a Pennsylvania corporation, Defendants.

Civ. A. No. 92-B-2076.

United States District Court, D. Colorado.

October 7, 1993.

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Daniel W. Patterson and Ian S. Karpel, Holland & Hart, Denver, CO, for plaintiff.

George B. Curtis, Gibson, Dunn & Crutcher, Denver, CO, for defendants.

MEMORANDUM OPINION AND ORDER

BABCOCK, District Judge.

Defendants SmithKline Beecham Animal Health, Inc., SmithKline Beecham Clinical Laboratories, Inc., and SmithKline Beecham Corporation (in its own corporate capacity and as successor-in-interest to Norden Laboratories, Inc.) (collectively SmithKline) move to disqualify plaintiff's English Feedlot (Feedlot) expert witness, Dr. Ned Brown (Brown) and its legal counsel, Holland & Hart. The issues are adequately briefed and oral argument will not materially aid their resolution. The parties have also submitted extensive affidavits and documentation concerning the factual matters raised here. The issues are submitted on the parties' papers. For the reasons set forth below, SmithKline's motion will be denied.

I. BACKGROUND

This product liability action centers around SmithKline's cattle vaccine, *CattleMaster 4 (*CM4). Feedlot alleges that it administered *CM4 as part of its 1991 vaccination program and soon thereafter, many of its cattle became sick or died. Feedlot contends that the *CM4 vaccine is defective and SmithKline misrepresented that the vaccine would effectively protect its cattle from certain diseases. *CM4 is related to several vaccines — the CattleMaster 4 family. The four common CattleMaster 4 family components are: i) bovine respiratory syncytial virus (BRSV); ii) bovine virus diarrhea (BVD); iii) infectious bovine rhinotracheitis virus (IBR); and, iv) parainfluenza3 virus (P13).

II. BROWN'S DISQUALIFICATION

SmithKline moves to disqualify Brown, an independent veterinary consultant, from acting as Feedlot's expert witness. It does so on conflict of interest grounds based upon Brown's relationship with SmithKline which predates this litigation.

Cases addressing this issue are rare. Therefore, not surprisingly, the parties cite no controlling authority. See Paul v. Rawlings Sporting Goods Co., 123 F.R.D. 271, 277 (S.D.Ohio 1988) (There is little case law dealing with expert witness disqualification). Even so, analogous authority points to the conclusion that Brown's disqualification is inappropriate because SmithKline did not disclose confidential information to Brown and even if such information was disclosed, SmithKline waived its confidentiality.

My analysis properly begins with a recognition of the court's inherent power to disqualify experts. Great Lakes Dredge & Dock Co. v. Harnischfeger Corp., 734 F.Supp. 334, 336 (N.D.Ill.1990). The expert disqualification standard must be distinguished from the attorney-client relationship because experts perform very different functions in litigation than attorneys. See Id. at 337. Experts are not advocates in the litigation but sources of information and opinions. See also E.E.O.C. v. Locals 14 and 15, Intern. Union of Operating Engineers, 1981 WL 163 (D.C.N.Y.) (rejecting blind application to experts of attorney disciplinary rules concerning client loyalty); see also Paul v. Rawlings Sporting Goods Co., 123 F.R.D. at 281 (distinguishing reasons for disqualifying attorneys from experts because there are many communications between a client and an expert witness which are not privileged and there is less stigma attached to an expert `changing sides' in the midst of litigation than an attorney, who occupies a position of higher trust). Because experts and attorneys perform different functions in litigation, the standards and presumptions applicable to the attorney-client relationship have no bearing on Brown's disqualification.

The party seeking disqualification bears the burden of establishing both the existence of confidentiality and its non-waiver. See generally Mayer v. Dell, 139 F.R.D. 1, 3 (D.D.C.1991). Here, SmithKline is the party seeking to disqualify Brown. Therefore, it bears the burden of proof. SmithKline contends that Brown, while retained by SmithKline, received confidential information regarding SmithKline's products, the components thereof, and SmithKline's defense and settlement strategies. SmithKline relies on five past consulting engagements as grounds for its motion: 1) 1984/1985 work in investigating and assisting in BRSV claim settlements (BRSV work); 2) 1985/1986 work conducted as an expert witness in the McCoy case (the McCoy case); 3) 1989 investigation concerning CattleMaster 4 + VL5 vaccine (CM4 + VL5 work); 4) 1990 investigation concerning *CattleMaster 4 + L5 vaccine (*CM4 + L5 work); and, 5) 1990/91 investigation concerning MLV IBR-L.Pomona vaccine (IBR work).

A) CONFIDENTIALITY

Other jurisdictions have established a two-step inquiry to determine whether to disqualify an expert who had a prior relationship with a party. First, was it objectively reasonable for the first party who retained the expert to believe that a confidential relationship existed? Second, did that party disclose any confidential information to the expert? Mayer v. Dell, 139 F.R.D. at 3. Hence, if any confidential disclosures were undertaken without an objectively reasonable expectation that they would be so maintained (hence, any confidentiality was waived), or if, despite a relationship conducive to such disclosures, no significant disclosures were made, disqualification is inappropriate. See Paul v. Rawlings, 123 F.R.D. at 278.

a) 1984/85 BRSV WORK

In 1984, SmithKline began receiving complaints that some livestock were contracting BVD after receiving BRSV vaccinations. The problem was traced to a contamination in the vaccine. BRSV was taken off the market until the problem was resolved. To avoid litigation, SmithKline retained fourteen outside veterinary consultants, including Brown, to investigate and to recommend settlement amounts.

SmithKline contends that Brown represented them in the BRSV investigations and Brown did not play a neutral role despite his "independent consultant" title. In his affidavit, Brown states that although SmithKline paid his fees, he functioned as an independent advisor to both SmithKline and complaining consumers. Brown states:

My task was to meet with herd owners who had complained about the product; undertake on-site investigations; determine whether Norden's BRSV product was actually used; identify the product's serial number; evaluate the clinical disease occurring or which had occurred; and determine whether such disease related to the use of the product. If the product had been used and the disease occurring was related to the product, I then assisted the herd owner in working up a settlement calculation to present to SmithKline.

Brown also asserts that SmithKline never provided him with confidential information regarding its products' design, history, strengths or weaknesses. Brown further maintains that the information he received concerning the contaminated vaccine and SmithKline's settlement strategy was the same information revealed to the public.

In considering the first prong of the two-step inquiry, SmithKline had an objectively reasonable expectation that its communications to Brown would be kept confidential. Since SmithKline paid Brown to settle its consumer complaints, Brown was not an "independent consultant". Moreover, SmithKline instructed Brown to label his cover letter "Privileged and Confidential — Work Product" to prevent the claimant from acquiring this letter should a lawsuit result. Under these circumstances, SmithKline was objectively reasonable in concluding that Brown would keep its communications confidential.

As to the second prong, SmithKline did not disclose confidential information to Brown. Brown's communication with SmithKline flowed in one direction — from complaining consumers to him to SmithKline. The only information which arguably went from SmithKline to Brown was the instruction packet for settling BRSV claims. However, this information, although labeled "Privileged & Confidential", was freely disseminated to the public via the fourteen consultants. Furthermore, any insight which Brown gained concerning SmithKline's settlement strategies was also publicly disclosed and, thus, not confidential.

Here, despite a relationship conducive to confidential disclosures, I find that SmithKline did not impart significant confidential disclosures to Brown. Therefore, Brown's 1984/85 BRSV work for SmithKline fails to provide sufficient grounds for his disqualification. See Paul v. Rawlings, 123 F.R.D. at 278.

b) THE McCOY CASE

SmithKline also seeks to disqualify Brown based on his work in the McCoy case. SmithKline labels Brown as a "consulting expert" in McCoy and contends that Brown assisted them throughout the discovery phase and engaged in telephone conversations with its attorneys regarding trade secrets and potential liability issues. SmithKline further contends that Brown obtained information about Norden's financial condition, met with expert witnesses and attended strategy meetings.

Feedlot counters that Brown was a testifying expert rather than a consulting expert. Therefore, Feedlot argues, the opposition had full access to all of his communications with SmithKline's counsel. Brown also disputes SmithKline's argument and asserts that his role was to determine what factors, other than the vaccine, caused McCoy's problem. Brown further states that SmithKline never revealed any trade secrets or defects to him, other than what was publicly divulged.

First, SmithKline did not have an objectively...