Great Lakes such that Great Lakes could reasonably expect Mr. Rumbarger or Franklin to refrain from using confidential or privileged information communicated to them by Great Lakes to Great Lakes' detriment. Further, no such information was ever communicated. It is Dr. Leonard who owes a duty to Great Lakes not to disclose Great Lakes' confidences or his work product on their behalf to his co-workers at Franklin. Similarly, it is Mr. Rumbarger and Franklin who owe a duty not to disclose FAG's confidential or privileged information to Great Lakes' expert, Dr. Leonard. However, FAG knows of the fact that Dr. Leonard works at Franklin and apparently is willing to rely on Mr. Rumbarger and Franklin to take appropriate steps to protect its interests in the litigation. Additionally, as discussed in Paul, it is primarily the duty of each side's attorneys to take necessary steps to prevent possible future disclosures of their clients' confidential or privileged information. Paul v. Rawlings Sporting Goods Co., 123 F.R.D. 271 (S.D. Ohio 1988).
The court refuses to disqualify Mr. Rumbarger or Franklin Research Center at this time. The parties and their attorneys are well aware of the relevant relationships of the experts and are in a position to prevent any improper disclosures in the future. It would be inappropriate under these facts to interfere with FAG's choice of an expert or to force Mr. Rumbarger and Franklin to decline employment by FAG.
Great Lakes argues that Rule DR 5-105(D) of the Model Code of Professional Responsibility governing attorney conflict of interest should be applied by analogy to prevent Franklin and Mr. Rumbarger from representing a party with interests adverse to the interests represented by Franklin's employee, Dr. Leonard. DR 5-105(D) prevents two attorneys in the same firm from representing adverse parties to the same litigation at anytime. However, experts do not represent clients in the same sense that attorneys do, nor does the protection of the fairness and integrity of the judicial process require the courts to blindly treat experts like attorneys. The same rationale discussed in the Paul case for not blindly applying attorney disciplinary rules to an expert who switches sides applies equally well to the vicarious disqualification rule of DR 5-105(D).
The fact that Dr. Leonard and Mr. Rumbarger have worked together in bearing failure issues at Franklin does not alter the outcome. Such matters did not involve the particular bearing failure at issue in the instant litigation. Neither party has a privilege or confidentiality interest in general theories, knowledge or techniques employed by various experts in a field or used by these experts in the course of their employment at Franklin on unrelated bearing failure issues. It is the confidential or privileged information obtained by an expert from a party or a party's attorney and the expert's findings, opinions and advice which result from application of the expert's knowledge in his field to such information which is subject to protection by a court from improper disclosure to, or use by, an adversary in litigation.
It is also not that unusual for opposing experts in narrow fields of specialty to have had exposure to each others work and theories or even to have worked together in the past. That is a fact of life where there is a limited number of experts in a given field, or limited experts with experience in a particular type of case. In such situations, the experts who testify at trial will be in a position of disputing the findings or conclusions of those with which they have had prior or ongoing relationships. However, that is what expert witnesses do at trial. Cross-examination is designed to address these possible biases. The court perceives no need to exercise the extreme remedy of disqualifying an expert in this situation, unless there has been a disclosure of confidential or privileged information to the prejudice of a party due to the relationship of the experts, or that such a relationship between the experts poses a significant risk of such disclosure and resulting prejudice.
ORDERED: Plaintiff Great Lakes' motion to disqualify FAG's expert is denied.
Date: April 10, 1990
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