Sterling Cody (Cody) tried to prevent James Marley Green (Green) from being an expert witness for Sherwin-Williams Co. (Sherwin) when Cody initially sought Green as an expert witness for the purposes of his individual litigation.
Both parties to a suit may not use the same expert witness at trial.
Sterling Cody (Cody) sued Sherwin-Williams Co. (Sherwin) for injuries sustained after running his bike over a railroad track crossing owned by Sherwin. Both parties obtained the same expert witness, James Marley Green (Green), who testified regarding bicycle accident reconstruction. Cordy filed a motion to prevent Green from being an expert witness for Sherwin.
Whether both parties to a suit may use the same expert witness at trial?
No. Green is barred from testifying for Sherwin because Green had access to Cordy’s confidential documents, billed Cordy for 28 hours of work on the case, and reviewed Cordy’s strategy for litigation. Green’s preexisting relationship with Cordy prevents Green from participating as an expert witness for the purposes of Sherwin’s litigation.
To decide whether an expert should disqualify as a witness, the court asks: (1) Whether the party who initially obtained the relationship thought that a confidential relationship existed, and (2) whether that party actually disclosed any confidential information to that witness?