Beware of the Expert Too Willing To Please

Posted on January 16, 2009 10:33 by Patrick J. Kenny

Everyone hopes to have some ability to influence their expert witnesses.  Some attorneys try to control their experts by engaging in the risky approach of only providing them limited information. Others exert  more subtle influence through their assistance in the preparation of their expert’s report.  Of course, most expert witnesses are professionals in their own right and are not subject to a great deal of influence. That is just as well given the very real possibility that any influence exerted by counsel over an expert will be discovered by and put to effective use by the other side.  Where counsel loses sight of those risks, and an expert is too willing to please, disaster can ensue – as plaintiffs’ counsel learned in Manez v. Bridgestone Firestone North American Tire, LLC, 533 F.3d 578 (7th Cir. 2008).

The plaintiffs in Manez were the family of a Mexican citizen who was killed in Veracruz, Mexico after a tire installed on his Ford Explorer exploded.  Id. at 582.  Originally the district court had granted a motion to dismiss under the doctrine of forum non conveniens on the ground that a forum in Mexico would be available and more appropriate for the litigation.  The plaintiffs appealed that ruling.  On appeal the plaintiffs submitted documents indicating that they had filed suit in a Mexican court and that the case had been dismissed on the grounds that the court “did not have jurisdiction over the case.”  Id.  They argued to the United States Circuit Court for the Seventh Circuit that the dismissal of the lawsuit in Mexico demonstrated conclusively that the courts in Mexico were not available to hear the case and thus the dismissal for forum non conveniens was improper.  The defendants, however, raised serious questions regarding the documents related to the lawsuit in Mexico.  The appellate court therefore remanded the case to the district court for further consideration. 
Upon remand the district court held an evidentiary hearing.  Ultimately that court concluded that the dismissal in Mexico “had indeed been procured in bad faith and thus was not subject to recognition.”  Id. at 582.  It therefore reaffirmed its earlier dismissal on the ground of forum non conveniens.  The defendants then moved for sanctions against the plaintiffs’ U.S. and Mexican lawyers.

As it turns out, the plaintiffs originally had hired a Mexican attorney, Dr. Pereznieto, to serve as an expert witness with respect to questions of Mexican law in the case.  After the district court in the United States had dismissed the plaintiffs’ case the first time based on forum non conveniens, and while that dismissal was on appeal, the plaintiffs also hired Dr. Pereznieto in a second capacity – to file the Mexican lawsuit and “insure that the judge would ‘throw out the suit according to what we planned.’”  Id. at 584-85.  Dr. Pereznieto accomplished that task.  Id. at 584.  Meanwhile, Dr. Pereznieto submitted an “expert affidavit” to the Seventh Circuit in support of the plaintiffs’ arguments seeking to overturn the first forum non conveniens ruling.  That affidavit did not reveal that Dr. Pereznieto was representing the plaintiffs in their Mexican lawsuit, much less that he had been hired with the goal of making sure the Mexican lawsuit was thrown out. 

After the Seventh Circuit remanded the case to the district court for further consideration of the first forum non conveniens ruling, approximately a year of discovery ensued during which the above facts were revealed.  Unsurprisingly, once it became aware of the above facts, the district court was very receptive to the defendants’ motion for sanctions. 

The district court sanctioned the plaintiffs’ U.S. attorneys $50,000 and ordered that those funds be divided among the defendants in any way that they thought was appropriate.  Id. at 582. 

In addition, the district court sanctioned Dr. Pereznieto personally in the amount of $100,000, half of which was payable to the defendants and the other half which was payable to the clerk of the court.  The district court also barred Dr. Pereznieto from providing any testimony against any defendant in the case in any U.S. court until the monetary sanction was paid in full.  The court also held that for purposes of resolving any “remaining cases in this multidistrict litigation, any and all sworn assertions reflecting the views or opinions of Leonel Pereznieto, whether made by him directly or indirectly, shall be stricken and we shall not consider as authority cases where his testimony whether oral or written was relied upon as justification for the court’s opinion.”  Id. at 583. 
In the end, the appellate court reversed the sanction against Dr. Pereznieto (albeit without prejudice), due in part to deficiencies with respect to the notice he had been given before the sanctions were imposed.  Nevertheless, after reading the sordid facts that led to the sanctions one wonders if the plaintiffs’ U.S. attorneys would not have preferred an expert who was a little more difficult to work with.  Indeed, although Dr. Pereznieto eventually might be able to avoid some of the sanctions imposed on him personally, the plaintiffs’ U.S. attorneys had no such luck – and did not appeal from the $50,000 sanction imposed on them. 

As always, if you have any thoughts, questions, comments or suggestions on this topic or for making this a more useful resource, please feel free to contact me directly.
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