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In re Mitchell6/1/1999
Original Proceeding Pursuant to C.A.R. 21
EN BANC
RULE MADE ABSOLUTE
In this personal injury lawsuit, the plaintiff retained and endorsed an expert witness who was previously retained and utilized as a pre-trial consultant by the opposing party. Fearing that their former consultant will be in a position to utilize confidential information to their detriment at trial, Petitioners/Defendants Robert Wilmore and Tramp Master, Inc. (collectively "Wilmore"), have sought relief in the nature of mandamus pursuant to article VI, section 3 of the Colorado Constitution and C.A.R. 21. Wilmore asserts that the trial court erroneously refused to disqualify the expert from further participation on behalf of the opposing party, Respondent/Plaintiff Linda Mitchell. We issued a rule to show cause, and now conclude that disqualification should have been ordered. Accordingly, we make the rule absolute.
I.
The personal injury action arises out of a rear-end automobile accident. At issue in the dispute below is whether the relatively low-speed accident could have caused the injuries being claimed by Mitchell.
During the course of pre-trial preparations, Wilmore contacted the firm of Biomechanics Research & Consulting, Inc., ("BRC"), for input on the causation issues raised by the case.(1) BRC president Jeffrey Wheeler accepted the matter on behalf of BRC, and together with biomechanist John Brault, performed a work-up and preliminary analysis of the accident. During a July 15, 1998 telephone conference, Wheeler and Brault discussed the case with counsel for Wilmore. The content and nature of this call is addressed in more detail below. BRC was paid for its services, and its work on the case put on hold. Although Wilmore continued to retain the BRC firm on a consulting basis, the consultants were not designated as expert witnesses for trial.
One month later, Mitchell also took steps to employ the BRC firm. Like Wilmore, Mitchell was interested in a biomechanical work-up of the forces involved in the accident. BRC's system of cross-checking files failed to detect the potential conflict of interest, and neither Wheeler nor Brault recognized the Mitchell representation as duplicative of the earlier work they had personally performed on behalf of Wilmore. As a result, the BRC firm - and Mr. Brault, in particular - became involved on both sides of the litigation. This dual retention occurred without the knowledge of either counsel, and the BRC experts have professed that the situation did not arise out of an intentional act or deliberate oversight on their part.
When Mitchell designated Brault as an expert witness for the upcoming trial, Wilmore objected, pointing to the conflict of interest created by the dual retention. Following Mitchell's refusal to voluntarily withdraw the Brault designation, Wilmore filed a motion requesting that the designation be stricken. The motion was based on the court of appeals' decision in City of Westminster v. MOA, Inc., 867 P.2d 137 (Colo. App. 1993), which described a two-part test evaluating (1) whether a prior confidential relationship had been established, and (2) whether confidential information was shared with the expert during the relationship. Wilmore argued that the requisite confidential relationship with BRC had been established, and that confidential information in the form of trial strategy, approaches to discovery, and other mental impressions of counsel had been discussed with Wheeler and Brault during the July 15, 1998 phone conference.
Alternatively, Wilmore claimed that the MOA opinion could be read to allow disqualification even absent the passing of confidential i
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