Plaintiffs’ Conspiracy Action Against Expert Witness who Allegedly Designed and Marketed Improved Product to Defendants Survives Motion to Strike

Arguably, a benefit of product liability litigation is that lawsuits demand that companies design products with greater safety measures and provide consumers with more pronounced, descriptive warnings. A guest speaker at my law school once told my class that engineers and automakers didn’t design many parts of the automobile — lawyers did. What he meant, of course, was that attorneys have filed suits against automakers when parts of a vehicle were allegedly unsafe or could have been designed with even greater safety measures in mind. This had, in turn, dictated the way that automakers designed that product from that point forward. The same guest speaker probably would not, however, have envisioned the alleged actions one California product liability attorney and his expert witness recently took in helping inspire this design process.

The California Court of Appeals recently refused to strike the plaintiffs’ complaint, where they filed suit against their attorneys and a consultant hired by their attorneys as an expert witness for negligence and conspiracy to commit fraud. Robles v. Chalilpoyil, —Cal.Rptr.3d—, (Cal. App. Jan. 27, 2010). The underlying action in Robles was a product liability claim initiated by the family of a man who burned to death when his wheelchair, which presumably was electric, ignited while he was occupying it. The family retained an attorney named Wills to represent them in their wrongful death action against the makers of the wheelchair.

According to the complaint, when the underlying case came up for trial, the family’s attorney requested a continuance on the basis that the plaintiffs’ expert witness had testified falsely in his deposition. The trial court thereby continued the trial to allow the attorneys to procure another expert witness. Before the new trial date, however, the attorney allegedly requested that each of the plaintiffs sign a waiver of any interest in a device that attorney Wills wanted to market to address the safety defects in the decedent’s wheelchair. Wills allegedly told the family members that the device would be designed and manufactured together with their former expert witness, based on research and information the expert witness had gathered in preparing for his expert testimony for trial.

After procuring each of the plaintiffs’ signatures and without retaining a new expert, the attorney “wrongfully pressured” the plaintiffs to settle the claim for $1 million. When several of the plaintiffs thereafter refused to accept the settlement proceeds, the Wills firm withdrew from the case and filed notice of lien for attorney fees.

The present case deals only with the issues of liability of the expert witness, as it was he who moved to strike allegations of the complaint as a SLAPP (Strategic Lawsuit Against Public Participation). According to the court, a SLAPP is a “meritless suit filed primarily to chill the defendant’s exercise of First Amendment rights.” The expert witness argued that his discussions with the attorney, during which the attorney solicited his agreement to allow his work product to be provided to the underlying defendants in the event of settlement, fell “comfortably” within the express terms of the anti-SLAPP statute. The California Court of Appeals disagreed, holding that such alleged discussions and agreements was not protected activity. It would not strike the plaintiffs’ complaint insofar as it alleged negligence and conspiracy to commit fraud against the former expert witness.

As noted, the court’s opinion deals with allegations of the complaint as alleged only against the expert witness. The attorney Wills, who represented the family in the underlying action, reportedly is the same person who was subsequently appointed to serve as a California Superior Court judge.

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