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September 30, 2019 Practice Points

The Mendacious Expert: A Cautionary Tale

Make sure to review expert retention agreements closely for red flags.

By Andrew J. Felser

You hire an expert whose contract provides that he “retains the right to approve video deposition.” If you represent the plaintiff and the expert’s testimony is indispensable for the purpose of proving liability, and if events in your case unfold like they did in Ruehl v. S.N.M. Enterprises, Inc., Civil No. 1:15-CV-168 (M.D. Pa. 2017), you’ve just made a $10,000 mistake—and that’s not counting the exponential loss in settlement value.

Ruehl, advanced in years, was felled by an automatic sliding door at the defendant’s motel, where she was a guest. According to the lawsuit, her injuries were ultimately fatal. Her attorneys retained as their expert Michael Panish, who touted himself as foremost in the field of automated sliding door technology. What he failed to disclose, and what plaintiff’s counsel—though highly skilled and experienced—didn’t anticipate, was that the foregoing contract provision stemmed from Panish’s fear that a videotape of his deposition could be manipulated digitally and then disseminated by unknown agents as an embarrassing deep fake, harming his reputation. Despite plaintiff’s counsel’s best efforts on a motion for protective order, the court issued an order that, notwithstanding his fears, Panish would have to submit to a videotaped deposition, but that the recording must not be used or disseminated outside of “these proceedings” absent further order of the court.

Unfortunately, Panish wasn’t satisfied and, in a profane outburst, let plaintiff’s counsel know it. He then embarked on a strategy of superficially cooperating with scheduling a deposition while privately never actually intending to submit to it. At one juncture, he faked a bout of laryngitis to avoid the ordeal. Ultimately, Panish’s obstinacy forced the plaintiff to settle the case for a low amount. And incensed by the losses Panish caused to each of them, the plaintiff and defendant both moved for monetary sanctions against him.

In a studious ruling on the plaintiff’s motion for $30,550 in fees, plus costs, which had been expended to handle the expert’s contumacious acts, the court awarded sanctions against Panish in the amount of $20,953, which was the amount that the expert had billed and received from plaintiff’s counsel for his services, plus costs. The court noted that under a well-settled body of law, courts have the inherent power to award monetary sanctions against witnesses and third parties who violate its orders. But sanctions must be calibrated to the harm done and may take into account mitigating factors. Though the court minced no words in skewering the expert for his misconduct, and though the court ruled that the expert must make restitution for the fees and costs attributable to that misconduct—the court did not order full restitution. From the time of Panish’s retention, the court reasoned, plaintiff’s counsel was on inquiry notice that the witness might fail to comply with Rule 30. The court found this to be a mitigating factor.

Two lessons can be found here. The most obvious is to review expert retention agreements closely for red flags before signing them. The second lesson is revealed only by reading the court’s ruling in full. Plaintiff’s counsel handled these extraordinary circumstances in a manner that impressed the court with his integrity. His credibility with the court salvaged at least a small victory against the witness who became his nemesis.

Andrew J. Felser is special counsel at Glade Voogt Lopez Smith P.C., in Denver, Colorado.

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