The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DREW DADDONO, as Personal
Representative on behalf of the Estate of
STEPHANIE MARIE MILLER,
Plaintiff,
v. Case No. 8:21-cv-315-WFJ-MRM
KURT A. HOFFMAN as SHERIFF
OF SARASOTA COUNTY, et al.,
Defendants.
_________________________________/
ORDER
Before the Court is Plaintiff’s Motion to Exclude Defendants’ Expert Dr.
Chad Zawitz (Dkt. 140) and Defendants’ Response (Dkt. 145). After careful
consideration of the submissions of the parties, the Court concludes the motion
should be denied.
PERTINENT FACTS
Dr. Chad Zawitz is a board-certified infectious disease and internal medicine
physician. Dkt. 145-1 ¶ 2. He is an attending physician at Cook County Jail in
Chicago, holds numerous professorial positions at universities in the Chicago area,
and is a certified correctional healthcare professional. Id. In December 2019, a
headhunter agency (MedLeague) contacted Dr. Zawitz about performing a
medical-legal review. Id. ¶ 4.1 He gave the agency his CV, fee schedule, and W9.
Id. He learned later that the medical care review pertained to Stephanie Miller. Id.
On February 25, 2020, Dr. Zawitz spoke on the telephone twice with Jacob
Slotin, one of the attorneys for Plaintiff. Id. ¶ 5. Dr. Zawitz avers he spoke to Mr.
Slotin regarding his qualifications and experience and provided him with his CV,
fee schedule, and W9. Id. He declares he was not retained by and did not receive
any medical records to review from either MedLeague or Plaintiff’s counsel. Id. ¶
5, 8, 11.2 He avers that concerning the two conversations of February 25, he took
no notes—his custom was to take notes during substantive conversations regarding
medical-legal reviews. Id. ¶ 7. He did “not formulate or offer any opinions to
anyone from Plaintiff’s counsels’ offices or MedLeague about Stephanie Miller’s
case.” Id. ¶ 12.
Emails provided by Plaintiff confirm there were two conversations on
February 25, 2020. Dkt. 140-2; Dkt. 140-4. Plaintiff’s version of the substance of
the conversations, however, differs. Mr. Slotin avers that in the first conversation,
he explained the facts of the case to Dr. Zawitz. Dkt. 140-3 ¶ 7. He states that Dr.
1 See also Dkt. 140-1 (email from MedLeague to an individual of Plaintiff’s law firm about Dr.
Zawitz).
2 Dr. Zawitz avers he never received a retainer or payment from either Plaintiff’s counsel’s
offices or from MedLeague. Dkt. 145-1 ¶ 9. He did not request a retainer or submit any invoices
regarding Stephanie Miller’s care. Id. Dr. Zawitz swears he did not do any work on behalf of
Plaintiff’s counsel or MedLeague on Stephanie Miller’s case. Id. ¶ 10.
Zawitz and he agreed upon the amount of the retainer and the hourly rate. Id. Mr.
Slotin swears that he:
shared additional information about counsel’s views of the strengths
and weaknesses of each parties’ position, claims, and defenses and
evaluation as to the evidence as it pertained to each, counsels’ legal
theories, and strategies and defenses thereto, including all that applied
to the Sarasota County Sheriff’s Office, Armor Correctional Health
Services, Inc. and its staff.
Id. As to the second phone call, Mr. Slotin claims he again explained Plaintiff’s
“counsel’s views of the strengths and weaknesses of each parties’ position, claims,
and defenses and evaluation as to the evidence as it pertained to each, counsels’
legal theories, and strategies and defenses thereto.” Id. ¶ 10.
On June 3, 2020, Dr. Zawitz informed MedLeague that he was unable to
accept any medical-legal reviews due to the COVID-19 pandemic. Dkt. 145-1 ¶ 6.
On June 5, 2020, Mr. Slotin learned from co-counsel Mr. Dallas LePierre that Dr.
Zawitz would be unable to provide expert witness services in Ms. Miller’s case.
Dkt. 140-5. Mr. Zawitz recommended Dr. Harish Moorjani, whom Plaintiff’s
counsel retained in this case. Id.; Dkt. 140 at 3.
When Defendants retained Dr. Zawitz in January 2022, they assert they did
not know about any prior discussions between Plaintiff’s counsel and Dr. Zawitz.
Dkt. 145 at 3. Defendants served their expert disclosures on January 31, 2022. Id.
at 11. Plaintiff filed this motion to disqualify Dr. Zawitz almost four months
later—on May 24, 2022. Dkt. 140. Plaintiff contends a confidential relationship
existed with Dr. Zawitz and confidential information was provided to Dr. Zawitz,
which created a conflict of interest when Dr. Zawitz “switched side[s] in this
litigation to provide expert services to Defendants.” Dkt. 140 at 6.
APPLICABLE LAW
A district court possesses inherit power to disqualify an expert witness.
Koch Ref. Co. v. Jennifer L. Boudreaux M/V, 85 F.3d 1178, 1181 (5th Cir. 1996)
(citation omitted). The power “derives from the necessity to protect privileges
which may be breached when an expert switches sides, and from the necessity to
preserve public confidence in the fairness and integrity of judicial proceedings.”
United States v. Thaller, No. 12-22445-Civ-Lenard/Seltzer, 2016 WL 6441548, at
*14 (S.D. Fla. Nov. 1, 2016) (quoting Larson v. Rourick, 284 F. Supp. 2d 1155,
1156 (N.D. Iowa 2003)).3 “Side-switching” is “where a party calls an adversary’s
former expert witness to testify against the adversary.” Kerns v. Pro-Foam of S.
Ala., Inc., 572 F. Supp. 2d 1303, 1309 n.8 (S.D. Ala. 2007). Side-switching is also
described as “testimony against a party’s interest by an expert witness formerly
retained by that party.” Indus. Risk Insurers v. M.A.N. Gutehoffnungshutte GmbH,
141 F.3d 1434, 1444 (11th Cir. 1998). There is no “blanket rule or policy” against
side-switching. Id. at 1445.
3 See also Glasser v. Hilton Grand Vacations Co., No. 8:16-cv-952-T-27AAS, 2017 WL
3584930, at *2 (M.D. Fla. July 24, 2017) (quoting Thaller); Beyel Brothers, Inc. v. EMH, Inc.,
No. 2:19-cv-14392-Marra, 2022 WL 1913516, at *1 (S.D. Fla. Apr. 14, 2022) (quoting Glasser).
Factors to be analyzed in determining whether disqualification of an expert
is appropriate include: “(1) whether the other party had a confidential relationship
with the expert; (2) whether it was objectively reasonable for the other party to
believe that it had such a relationship; and (3) whether the other party did, indeed,
disclose confidential information to the expert.” In re: Deepwater Horizon Belo
Cases, No. 3:19-cv-963-MCR-GRJ, 2021 WL 8015819, at *2 (N.D. Fla. Dec. 23,
2021); NXP B.V. v. Rsch. in Motion, Ltd., No. 6:12-cv-298-Orl-22TBS, 2013 WL
12158602, at *2 (M.D. Fla. Mar. 14, 2013). “Additional considerations include
policy and fairness, such as the availability of an alternative expert witness and,
when the assessment is made at late stages in the litigation, the potential disruption
to the judicial proceedings.” Glasser v. Hilton Grand Vacations Co., No. 8:16-cv-
952-27AAS, 2017 WL 3584930, at *2 (M.D. Fla. July 24, 2017) (internal
quotation marks, brackets, and citations omitted).
The party seeking disqualification bears the burden “of establishing both the
existence of confidentiality and its non-waiver.” Glasser, 2017 WL 3584930, at *2
(citing Thaller, 2016 WL 6441548, at *15 and In re Androgel Antitrust Litig. (No.
II), No. 1:09-MD-2084-TWT, 2011 WL 1882516, at *3 (N.D. Ga. May 17, 2011);
English Feedlot, Inc. v. Norden Labs., Inc., 833 F. Supp. 1498, 1501–02 (D. Colo.
1993).4 Disqualification of an expert witness is a “drastic remedy” and rarely
granted. See Koch, 85 F.3d at 1181 (citations omitted); Glasser, 2017 WL
3584930, at *2 (citing Rhodes v. E.I. Du Pont De Nemours & Co., 558 F. Supp. 2d
660, 664 (W.D. W.Va. 2008)); Murray Energy Corp. v. McCarthy, No. 5:14-cv-39,
2016 WL 3390517, at *2 (N.D. W.Va. June 17, 2016). Courts should be
particularly careful about disqualifying those experts who possess useful,
specialized knowledge and are few in number. Koch, 85 F.3d at 1183 (citing
English Feedlot, 833 F. Supp. at 1504–05). “[I]f experts are too easily subjected to
disqualification,” attorneys and their clients may manufacture an “inexpensive
relationship with potentially harmful experts solely to keep them” from being used
against them by the opposing side. Id. at 1083 (citation omitted).
DISCUSSION
To establish disqualification of Dr. Zawitz based on conflict of interest,
Plaintiff carries the burden of showing that (1) a confidential relationship existed
between them, (2) it was objectively reasonable for Plaintiff to believe such a
relationship existed, and (3) confidential information was, in fact, disclosed to Dr.
Zawitz by Plaintiff. If Plaintiff can prove the expert “switched sides,” then
disqualification is favored. On the other hand, if the expert possesses specialized
4 See also Koch, 85 F.3d at 1181; Goldman v. Bracewell & Patterson, L.L.P., No. 6:04-cv-725-
Orl-18JGG, 2005 WL 5960357, at *1 (M.D. Fla. May 9, 2005) (citing English Feedlot).
knowledge in a particular area and such experts are scarce, policy militates toward
permitting the relationship to continue between Defendants and Dr. Zawitz.
Has Plaintiff established a confidential relationship existed with Dr. Zawitz?
A written agreement is not definitive of whether a confidential relationship
exists. There are instances where, despite the existence of a formal contract, little
or no confidential information has been disclosed and disqualification is not
warranted. See Hewlett-Packard Co. v. EMC Corp., 330 F. Supp. 2d 1087, 1094
(N.D. Cal. 2004) (citing Paul v. Rawlings Sporting Goods Co., 123 F.R.D. 271,
278 (S.D. Ohio 1988)). Conversely, situations exist where confidential
information has been disclosed, although the parties’ agreement has not been
reduced to writing. See id. (citing cases).
Here, Plaintiff cannot identify or produce a confidentiality agreement
executed by either party in this case. Dr. Zawitz cannot recall or find a copy of any
such agreement with Plaintiff. Plaintiff argues that Dr. Zawitz advised Mr. Slotin
that he would provide expert services for Stephanie Miller’s case. Plaintiff argues
the follow-up email (from Mr. Slotin to Dr. Zawitz) and the written agreement and
fee schedule (sent by Dr. Zawitz to Mr. Slotin) confirm the oral contract. The
Court disagrees. The emails do not confirm an agreement. Mr. Slotin simply
asked Dr. Zawitz to forward his fee schedule and typical contract. There is no
email confirming that Dr. Zawitz was retained and would provide expert services
on behalf of Plaintiff. The exchanged emails and the documents provided by Dr.
Zawitz are insufficient to solidify a confidential relationship.
In addition to the absence of a written agreement, other factors militate
against finding a confidential relationship. Dr. Zawitz was never provided medical
records for review. He was never paid for any work in this case. He never
formulated any opinions on the medical care. The total sum of “meetings”
includes two telephone conversations on February 25, 2020. No invoice was sent
for those conversations. Contrary to Dr. Zawitz’s own practices upon accepting a
case, he did not take notes, keep a time log, or submit an invoice. Assuming he
acted in conformity with his customary procedures, no relationship was formed or
existed. Any ambiguities regarding whether there was a confidential relationship
between an attorney and an expert should be resolved against the attorney claiming
such a relationship existed. De Palo v. Ludlam Retail Assocs., Ltd., No. 13-20323-
Civ-Martinez/McCaliley, 2013 WL 12304736, at *2 (S.D. Fla. Sept. 9, 2013)
(citation omitted). The Court finds Plaintiff failed to establish a confidential
relationship.
Was it objectively reasonable for Plaintiff to believe a confidential relationship
existed with Dr. Zawitz?
Plaintiff relies on the same submissions to answer this second question—the
emails and two telephone conversations of February 25. Dkt. 140-2; Dkt. 140-3 ¶
7. The first email of February 25 was sent after the first telephone conversation.
In the first email, Mr. Slotin requests a “current CV, Fee Agreement, and W9 in
advance of your initial review.” Dkt. 140-2. Dr. Zawitz provided these
documents. Dkt. 145-1 ¶ 5. Mr. Slotin avers that during the first telephone
conversation, which preceded the email requesting a fee agreement, Dr. Zawitz
“agreed to provide [expert] service[s] for a specific retainer and hourly rate, a rate
to which I agreed verbally.” Dkt. 140-3 ¶ 7. Dr. Zawitz does not agree and avers
he “was not retained.” Dkt. 145-1 ¶ 5. In any event, Plaintiff does not contend that
any confidential information regarding the facts of the case was discussed in the
initial conversation and therefore it was not objectively reasonable on the part of
Plaintiff to believe a confidential relationship was established during the first
conversation.
It is also not objectively reasonable to believe the follow-up email asking for
documentation from Dr. Zawitz created a confidential relationship. By Mr.
Slotin’s own words, Dr. Zawitz was to provide these documents “in advance” of
his “initial review.” Dkt. 140-2. Consequently, any established confidential
relationship existing after the first conversation is belied by this email.
As to the second conversation of February 25, Mr. Slotin contends
confidential information was conveyed. Whether Plaintiff has met the burden of
showing disclosure is addressed in the answer to the next question.
Has Plaintiff made a showing that confidential information was exchanged?
Even assuming that both a confidential relationship and an objectively
reasonable belief existed, Plaintiff has failed to show that confidential information
was disclosed. Confidential information is information “of either particular
significance or [that] can be readily identified as either attorney work product or
within the scope of the attorney-client privilege.” Hewlett-Packard, 330 F. Supp.
2d at 1094; Rawlings Sporting Goods, 123 F.R.D. at 279. Confidential information
includes “discussion of the [retaining party’s] strategies in the litigation, the kinds
of experts [the party] expected to retain, [the party’s] views of the strengths and
weaknesses of each side, the role of each of the [party’s] witnesses to be hired, and
anticipated defenses.” Koch, 85 F.3d at 1182 (citing Mayer v. Dell, 139 F.R.D. 1,
4 (D.D.C. 1991)).
“The expert disqualification standard must be distinguished from the
attorney-client relationship because experts perform very different functions in
litigation than attorneys.” English Feedlot, 833 F. Supp. at 1501. Attorneys are
advocates; experts are sources of information and opinions. Id. Many of the
communications between a client and an expert are not privileged. Id.
Communications between counsel and experts do not carry the presumption that
confidential information was exchanged. Deepwater Horizon, 2021 WL 8015819,
at *3 (citing Rawlings Sporting Goods).
Mr. Slotin avers in a conclusory fashion that he shared legal theories,
defenses, and the strengths and weaknesses of Plaintiff’s case with Dr. Zawitz. Dr.
Zawitz avers Mr. Slotin did not reveal any confidential information, and if he did
so, Dr. Zawitz has no recollection of such information. Plaintiff has not sought to
provide any evidence or submissions for in camera review. Without more, this
Court cannot assume that Mr. Slotin disclosed confidential information to Dr.
Zawitz. See Androgel, 2011 WL 1882516, at *4 (denying motion to disqualify
experts partly because general and vague allegations such as the attorney’s views
on the strength and weaknesses of the case was not sufficiently specific to establish
disclosure of confidential information).5 The recitation in lead counsel’s
declaration of generalized language, in an apparent attempt to meet the threshold
espoused in case law, is not sufficient to carry Plaintiff’s burden of proof.6
Do policy and fairness considerations weigh in favor of disqualification?
Dr. Zawitz possesses specialized knowledge in the field of infectious disease
and internal medicine, specific to the incarcerated care setting. There are a limited
number of physicians with these certifications and credentials. Dr. Zawitz
5 See Beyel Brothers 2022 WL 1913516, at *2–3 (denying motion to disqualify expert because
plaintiff failed to meet its evidentiary burden that confidential information had been disclosed);
Deepwater Horizon, 2021 WL 8015819, at *4 (denying motion to disqualify expert, finding “in
the complete absence of documentation” the drastic remedy of disqualification could not be
imposed).
6 Additionally, none of the emails provided by Plaintiff contain confidential information or
indicate any confidential information was exchanged. As noted by Defendants, medical records
of the injured party are discoverable in this case.
informed MedLeague in June 2020 that he declined to take any medical reviews
based on the pandemic. Dkt. 145-1 ¶ 6. Thereafter, he recommended to Mr.
LePierre and Mr. Slotin that Dr. Harish Moorjani was the only other physician he
knew with similar expertise. Id.7 Dr. Moorjani is the physician retained by
Plaintiff in this case.
Granted, there is no evidence or contention that the relationship was initially
formed to preclude Dr. Zawitz from acting as Defendants’ expert. And skilled
experts in medical care in the prison setting are not abundant, which supports
denying disqualification. Cf. Glasser, 2017 WL 3584930, at *4 (finding that
although suitable experts for plaintiff were not “few and far between,” they were
all “defense” experts). Balancing all of the factors in this case, the Court finds that
policy and fairness warrant denying disqualification.
Accordingly, Plaintiff fails to show that a confidential relationship existed,
that it was objectively reasonable to conclude a confidential relationship with Dr.
Zawitz existed, or that any relevant confidential or privileged information was
disclosed. This is not a case of an expert switching sides. In fact, Plaintiff waited
four months after learning the identity of Defendants’ expert to move for his
disqualification. Policy and fairness considerations weigh heavily in favor of
7 “The best person I can think of is Dr. Harish Moorjani in NY prison system. He is ID
[Infectious Disease], decades of prison work, and very very smart.” Dkt. 140-5.
allowing Dr. Zawitz to continue as Defendants’ expert. This case is set for
mediation July 26, 2022, and jury trial in December. Any potential harm would be
suffered by Defendants at this late stage.
It is therefore ORDERED AND ADJUDGED the motion to exclude
Defendants’ expert Dr. Chad Zawitz (Dkt. 140) is denied.
DONE AND ORDERED at Tampa, Florida, July 18, 2022.
me,
UNITED STATES DISTRICT JUDGE
COPIES FURNISHED TO:
Counsel of record
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