Mid America Agri Products v. Rowlands
286 Neb. 305
| Neb. | 2013Background
- Horizon sought mandamus to disqualify Lansing’s counsel over Lansing’s retention of expert O’Neil who had confidential communications with Horizon.
- District court disqualified O’Neil as an expert but did not disqualify Lansing’s counsel; Horizon sought writ requiring disqualification of Lansing’s counsel.
- Special master found O’Neil was not a support person under §3-501.9(f); confidential relationship existed, but O’Neil did not convey confidential information to Lansing’s counsel.
- Nebraska Rules §3-501.9 governs conflicts with “support persons” and distinguishes experts from staff; irrebuttable confidences apply to lawyers, not experts.
- Court denied Horizon’s mandamus; O’Neil barred from testifying, but the disqualification of Lansing’s counsel was not required; Horizon’s application was denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was O’Neil a support person under §3-501.9(f)? | Horizon argues experts fall within the rule’s reach due to confidentiality. | Lansing contends experts are not support persons under §3-501.9(f). | No; O’Neil was not a support person. |
| Should an irrebuttable presumption of shared confidences apply to side-switching experts? | Horizon seeks per se disqualification due to confidential info. | Experts are not lawyers; no per se rule applies. | Irrebuttable presumption applies only to lawyers, not to experts. |
| Did Horizon prove a clear right to disqualify Lansing’s counsel via mandamus? | Horizon must show confidential info was shared and taints proceedings. | Respondent found no such sharing; no mandate to disqualify. | Writ denied; no clear right to disqualify Lansing’s counsel. |
Key Cases Cited
- State ex rel. Freezer Services, Inc. v. Mullen, 235 Neb. 981 (1990) (conflicts of interest; early irrebuttable confidences rule developed)
- Bechtold v. Gomez, 254 Neb. 282 (1998) (limits of irrebuttable presumption; law student not a support person)
- Larkin v. Ethicon, Inc., 251 Neb. 169 (1996) (recommended factual findings have weight of a verdict)
- Schropp Indus. v. Washington Cty. Atty.’s Ofc., 281 Neb. 152 (2011) (mandamus elements; burden on movant)
- Shadow Traffic Network v. Superior Court, 24 Cal. App. 4th 1067 (Cal. App. 1994) (test for disqualification of an expert with confidential info)
- North Pacifica, LLC v. City of Pacifica, 335 F. Supp. 2d 1045 (N.D. Cal. 2004) (expert side-switching; three-part test for disclosure risk)