## Facts

- Sterling E. Cordy sued The Sherwin-Williams Company for injuries allegedly caused by a negligently maintained railroad track crossing in Lindenwold, New Jersey.
- During litigation, Cordy’s counsel retained bicycle-accident reconstruction expert James Marley Green to work on the case.
- Green performed substantial work (about 28 billable hours) and received access to Cordy’s confidential materials and counsel’s litigation strategy.
- After receiving this information, Green returned Cordy’s retainer and agreed to serve as an expert for Sherwin-Williams in the same case.
- Sherwin-Williams sought to use Green to examine and test Cordy’s bicycle.

## Issues

1. Whether an expert who was retained by one party, performed substantial work, and received that party’s confidential information may later serve as an expert for the opposing party in the same litigation.
2. Whether defense counsel and its law firm must be disqualified for retaining and communicating with an expert who previously had a confidential relationship with the plaintiff and received confidential information.
3. Whether the defendant’s motion to compel production of the bicycle for testing by the side-switching expert should be granted.

## Decision

- The court barred Green from serving as Sherwin-Williams’s expert in the case.
- The court disqualified the defense law firm from further representing Sherwin-Williams in the matter.
- The court denied Sherwin-Williams’s motion to compel production of the bicycle for testing by Green.

## Legal Principles

- Courts may disqualify a “side-switching” expert using a two-part inquiry:
  - Whether it was reasonable for the first party to believe a confidential relationship existed with the expert.
  - Whether the first party actually disclosed confidential or privileged information to the expert.
- If both prongs are satisfied, allowing the expert to assist the opposing party risks unfair advantage and threatens confidence in the fairness of the proceedings.
- Where counsel engages a tainted expert, disqualification of counsel may be warranted to prevent use (direct or indirect) of confidential information and to protect the integrity of the process.
- Discovery requests tied to a disqualified expert may be denied when the requested testing would be conducted by that tainted expert.

## Conclusion

The court treated expert side-switching after exposure to an opponent’s confidential case preparation as incompatible with fair litigation, disqualifying both the expert and defense counsel and denying discovery aimed at enabling the tainted expert’s testing.


Cordy v. The Sherwin-Williams Co., 156 F.R.D. 575 (D.N.J. 1994)