A lawsuit recently filed in federal court in Chicago by Cottrell Inc. against J. Nigel Ellis highlights the issue of conflicts of interest for expert witnesses. Ellis is reportedly the founder of Ellis Litigation Support, Dynamic Scientific Controls, and Ellis Ladder Improvements. He has two roles in his career: selling safety products, and testifying as an expert witness about safety products.
According to the complaint, Cottrell says that Ellis approached the company in August 2005 to sell a “fall protection design” them. Prior to talking with Ellis, the company says they asked him if he was working with any of the attorneys representing plaintiffs who had sued Cottrell. He said he was not, and he signed a confidentiality agreement with the company. Ellis and Cottrell began exchanging information and letters regarding safety designs, and the relationship went on for nearly two years.
In July 2007, Brian Wendler (a plaintiff’s attorney) disclosed Ellis as an expert witness in Assaf v. Cottrell. The company says that Ellis was working with Wendler for more than a year, and used information gathered from the company during their communications to support his expert opinions and assist the plaintiff in it claims against Cotrell.
Ellis was ultimately disqualified as an expert witness in the case (allegedly because of the conduct outlined in the new suit), with the judge saying ” I have never run across this in the 40 years I’ve been doing this stuff.” The judges also said, “I believe it is appropriate to disqualify him. I certainly understand plaintiff’s counsel’s position to desire to withdraw him, because there is no appropriate basis on which he can serve as plaintiff’s expert.” In addition, attorneys fees of $18,000 were awarded to Cottrell, related to this issue.
The current lawsuit seeks $1 million in damages from Ellis and his companies for breach of contract, negligence, fraud, and more.
The case is in its early stages, and so we should be careful about the conclusions we draw from it. At this point, there are many allegations, but no real response from Ellis. To date, he has filed a motion to dismiss, saying that the venue of the Northern District of Illinois is improper, and the suit should be dismissed or moved to the Southern District of Illinois. (At one point a suit was pending in the Southern District, and Cotrrell dismissed it, only to refile in the Northern District.)
However, regardless of the outcome, this suit raises some important issues for expert witnesses. Sometimes conflicts of interest fall into gray areas in which it is difficult to determine whether a conflict exists that should preclude an attorney or an expert from being retained by a client. If Cotrell is to be believed, however, it seems that Ellis’s retention by the plaintiff’s attorney should have raised some eyebrows.
It is reasonable to believe that in attempting to sell products to Cotrell, Ellis may have developed information about the company, its products, and its business practices that he might otherwise not been privy to. Had Cotrell expected that Ellis may become an expert witness in a case against the company, management likely would not have communicated with him regarding his safety designs and their business.
It is often easy to discern whether or not a potential expert witness has a conflict of interest or is in possession of information that would lead one to believe that the expert is not impartial. In other cases, it may not be so clear. Both experts and attorneys would do well to err on the side of caution to avoid even the appearance of impropriety such as the one being alleged in the Cottrell case.