Does an Expert Witness Have Standing to Intervene?

If a court enters an adverse ruling concerning an expert witness, does that witness have standing to intervene to challenge the ruling?  I’ve deposed numerous expert witnesses who have been excluded from trial in other cases for varying reasons.  When questioned about it, they uniformly attempt to excuse it by arguing they were never given notice of the motion to exclude or were not allowed to participate in the motion so as to “properly explain” their opinions to the court.  This led to the question that is the topic for this post.

Why would an expert witness want to intervene?  For some, adverse rulings can have severe affects upon their ability to find work.  Others want to protect their reputations, which also correlates to their ability to find work.  Courts considering the question, however, have concluded experts lack standing to intervene.

Morgan Keegan & Co. v. Garrett concerned an arbitration about investment securities that “included testimony from Craig McCann, the claimant’s technical witness.”[1]  The investors prevailed, but the arbitration award was later set aside.  One reason was McCann “knowingly testified that his results were technically authentic and reliable when he then knew — as he later testified that they were wrong. Although he later testified that he realized his conclusions were false at the time of his testimony, he never told counsel questioning him or the panel that he needed to change his testimony.”[2]  After that order was entered, McCann “moved to intervene to strike all adverse references to him from the court’s opinion.”[3]

The court lacked jurisdiction because the judgment was on appeal.  However, even if jurisdiction had been present,

McCann has no basis to intervene because he was only a witness, and he has no legally protectable interest in these proceedings. He insists that the court’s findings hurt his reputation, giving him grounds to intervene as a party.

Craig McCann has not been fined, branded, jailed, whipped, or transported to Georgia. In the course of a case, the court is obliged to decide things, and these decisions may reflect poorly on the parties, witnesses, and other people who were part of the factual basis for the suit. Crisp rulings that displease the object of them are a necessary friction of litigation.  McCann’s unhappiness about the court’s findings does not create a justiciable controversy.[4]

The Court then rejected what it described as an attempt to rewrite history.

Having voluntarily testified, he assumed the risk of an adverse evaluation by the court. A technical witness cannot accept money to testify for a party and then erase his presence because a court rejects his competence, coherence, or credibility.

In a parallel, an author may not send a book to a newspaper for review, seeking exposure through the paper, and then sue when he does not like the review. People who testify under compulsory process may not sue because their testimony is found to have been anything from weak to false. The consequence of testifying is the same whether the witness is a party, observer-participant, or after-the-fact technician. He was not punished by the court. It imposed no obligation on him. Evaluation of testimony is not a sanction.

Ironically, McCann has asked the court to change its judgment to say that it merely did not believe his testimony. Of course, mere disbelief is categorically distinct from what the court did find — active, knowing misrepresentation. No, the court will not dishonestly skew its decision to obscure the witness’s actual behavior. He took a check, and he took an oath, but he was faithful to only one. Equally bad, a finding of mere disbelief would change the outcome of the case. The standard that the court was obliged to use is fraud. The court has the responsibility to review evidence and find fact. He cannot rewrite the history of his testimony or the court’s judgment about it.[5]

In Jones v. Bordman a medical expert was excluded from trial for a variety of reasons and sought to intervene.[6]  The case also concerned a motion to quash a subpoena to the expert.  As the subject of a subpoena, the expert had standing to challenge the subpoena, but lacked standing to intervene to challenge the order excluding him from trial.  First, Kansas law at the time established a procedure by which non-parties could seek to intervene that the expert had not followed.  “In addition, Dr. Lichtor has no interest in the issues being litigated between the parties in the present case nor does he have standing as an intervening party.”[7]

In Mac Sales v. E.I. Dupont de Nemours the trial was on damages only and the expert “relied almost exclusively on a market survey conducted under his supervision. During his trial testimony, Mr. Trappey testified under oath that the survey consisted of 584 interviews of potential customers.”[8]  About that…

After trial, defendant Dupont requested relief from the jury verdict of $11.2 million in damages, claiming that Mr. Trappey had misrepresented his survey results. This Court conducted an evidentiary hearing on July 28, 1995 regarding Mr. Trappey’s trial testimony. During that hearing, the Court heard videotape deposition testimony from Rahul Rosha, the graduate student who had made the actual telephone calls that comprised Mr. Trappey’s survey. Mr. Rosha testified that only 100 people had actually responded and been interviewed for the survey. Evidence presented as to the computer printouts utilized at trial revealed that the printout consisted of only one set of 100 data entries repeated five times and not a printout of 500 separate entries. After hearing all of the evidence presented, the Court found that “the evidence that Mr. Trappey falsified his data and his report and that he perjured himself is clear and convincing” and that his perjurious testimony was “the sole evidence supporting a multimillion dollar verdict.” The Court also found that defendant had been prejudiced. Accordingly, in an August 2, 1995 Order, this Court granted relief to the defendant under Fed. R. Civ. Proc. Rule 60 (b)(6) and ordered a new trial on the issue of damages.

The expert then moved to intervene “to protect ‘his economic and financial interests, his professional reputation and ability to earn a living….’” He failed. First, the expert failed to satisfy the procedural requirements for moving to intervene.  Second, “Mr. Trappey lacks the required interest in the underlying action in order for him to intervene as a matter of right.”  “Economic interest alone is insufficient to justify intervention under Rule 24(a).”

Mr. Trappey does not claim any financial interest in the underlying action.  His sole involvement in the underlying action was as an expert witness during the damage phase of the litigation. His claimed interest relates to his reputation and to his potential financial earnings both of which are completely unrelated to the underlying litigation of the lawsuit in which he testified.

Anticipating that, the expert offered an alternative theory.  However, standing requires a legal interest, not “interests of a general or indefinite character.”[9]  The expert had not argued the court’s order had affected “in any way, a legal right or privilege that he may possess. Instead, his claimed interests in the protection of his reputation, credibility and future financial opportunities represent the type of ‘general and indefinite’ interests that the court in AT&T held did not justify intervention.”  Mac Sales further concluded “as a matter of law an expert witness’s reputation interest is insufficient to intervene as a matter of right.”

Calloway v. Westinghouse Elec. Corp. rejected a similar argument when an expert witness moved to intervene.  “The alleged interest Dr. Siskin wishes to protect in this case is his own reputation and academic credibility surrounding his work. Dr. Siskin asserts that this court erroneously impugned his reputation for academic honesty … and, thus, in order to protect his reputation in the community, intervention is essential.”[10]  This interest was not sufficient to create standing.  “This court finds that as a matter of law, a witness’ interest in his reputation alone, following a finding by a court that he is not credible, does not” create standing.[11]  “To find otherwise would invite intervention every time a court is required to determine the credibility of a witness. Rule 24(a)(2) was not designed to provide a forum for witnesses in the underlying action to protect their reputation in the community.”[12]

[1] 848 F. Supp. 2d 691, 692 (S.D. Tex. 2012).
[2] Id.
[3] Id.
[4] Id. at 693.
[5] Id. at 693-94.
[6] 759 P.2d 953, 955 (Kan. 1988).
[7] Id. at 965.
[8] No. 89-4571, 1995 U.S. Dist. LEXIS 14745 (E.D. La. Sep. 29, 1995).
[9] (quoting United States v. AT&T Co., 642 F.2d 1285, 1292 (D.C. Cir. 1980)).
[10] 115 F.R.D. 73, 74 (M.D. Ga. 1987).
[11] Id.
[12] Id.