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Brown v. Contemporary OB/GYN Associates3/27/2002
zed, however, because appellants never secured the expert's attendance at trial, and there was no finding or evidence that Armstrong somehow corrupted the expert to induce him not to appear.
Appellants rely on Erickson v. Newmar Corp., 87 F.3d 298 (9th Cir. 1996), to support their contentions. In that case, Donald Erickson, who was pro se, brought suit against Newmar Corporation, claiming that his motor home, manufactured by Newmar, was defective. Before a scheduled deposition of Erickson's metal expert, Newmar's attorney sought to hire the plaintiff's expert to evaluate a lock for an unrelated case. The plaintiff was present during the conversation, and when the defense lawyer asked him if he had a problem with the arrangement, he said that it was not his decision. Id. at 300. Subsequently, the plaintiff told the attorney that she had "violated the law." Id.
Erickson filed a "Motion for Judgment Against Newmar for Tampering with a Material Witness," id., which the court denied. That same day, after the expert resigned from his role with defense counsel in the unrelated case, Erickson fired the expert, claiming a lack of trust. In addition, Erickson's other expert witness refused to testify, because "he did not want to be involved in a case where `the attorneys [were] bothering the witnesses.'" Id. Consequently, Erickson went to trial without his expert witnesses, and the court entered judgment in favor of Newmar.
On appeal, the Ninth Circuit framed its inquiry as follows: " laintiff's claim of unethical conduct by defense counsel requires us to decide: 1) whether [the defense] attorney['s] offer of employment and subsequent ex parte communication with [the plaintiff's expert] was unethical; and 2) if so, what sanction is appropriate?" Id. at 301. The court ruled that the trial court "abused its discretion by failing to address Erickson's claim of unethical conduct in the form of witness tampering." Id. at 303. Consequently, the court reversed the judgment of the district court, remanded the matter for a new trial, and instructed the trial court to impose appropriate sanctions upon the defense attorney. Id. at 304.
The court acknowledged that " here is a scarcity of case law on the issue of ex parte contact with expert witnesses, possibly because the violation seldom happens." Id. at 302. Nonetheless, citing American Bar Association Formal Ethics Opinion 93-378 (1993), and the Oregon State Bar Association's Formal Opinion 1992-132 (1992), the court stated that "an attorney violates an ethical duty when the attorney has ex parte contact with the opposing party's expert witness." Id. The court reasoned that, " egardless of [the defense attorney's] motive, at a minimum, the offer of employment put [the plaintiff's expert] in the position of having divided loyalties. Quite simply, this court chooses to abide by the ageless wisdom that a person cannot serve two masters." Id. at 303.
We agree with appellees that Erickson is distinguishable from this case. We explain.
In Erickson, the communications between the plaintiff's expert and the opposing counsel preceded the deposition of the plaintiff's expert. In contrast, Armstrong and Dr. Osborne had no contact until after Dr. Osborne had testified at the first trial in June 1999; due to the failure of appellants' lawyers to secure Dr. Osborne's presence at the third trial, that was the testimony that was introduced at the third trial. Clearly, that testimony was not tainted by Armstrong's representation of Dr. Osborne. Put another way, Dr. Osborne could not have been influenced in regard to his testimony, even subliminally, because his testimony was provided prior to Armstrong's representation of him.<
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