Testimony of Civil Engineering Expert Witness Admitted despite Alleged Confidential Relationship with Opposing Party

Plaintiffs, Julie Jenkins and James Gunn asserted claims under the Clean Water Act and various Georgia Environmental Statutes, including the Georgia Erosion and Sedimentation Act, arising from wholly past conduct that occurred in 2020. Plaintiffs alleged that “red clay” was deposited on Daniel Bruce’s farmland as part of the farm’s operations and that an unspecified amount of the red clay was alleged to have washed off the farm during rain events in 2020.

However, Defendants Daniel Bruce, Plateau Excavation, Inc., and Alif Transport, Inc., argued that the Complaint was premised on allegations of runoff from agricultural operations, despite the Clean Water Act specifically exempting such runoff from its statutory scheme. The Defendants also alleged that the Court lacked jurisdiction to hear Plaintiffs’ allegations as they concerned only “wholly past” actions.

Defendant Alif Transport filed a motion to exclude the testimony of Plaintiff’s expert Brian Wellington. Before the Plaintiffs retained Wellington, Alif’s defense counsel, Andrea Pawlak, had discussions with Wellington about serving as Alif’s expert. Moreover, attorney Pawlak asserted that she had known and worked with Wellington for at least fourteen years. The Court found that Pawlak’s broad discussions related to this case and working relationship on other cases with Wellington were insufficient to warrant Wellington’s exclusion as Plaintiffs’ expert.

Civil Engineering Expert Witness

Brian Wellington is a Senior Engineer and Partner with NewFields. Wellington has over 30 years of experience as a consultant in civil and environmental engineering. He holds a Ph.D. in Civil and Environmental Engineering from Syracuse University. He is a licensed Professional Engineer in five (5) states including Georgia.

Discussion by the Court

Attorney Pawlak elaborated on the communication she had with Brian Wellington with regard to this case. Attorney Pawlak stated that she had emailed Wellington initially about this case on November 9, 2022, and had given him a list of names to do a conflict check. Wellington confirmed that he had no conflicts. Attorney Pawlak’s November 14th billing records showed she had “conferred with Brian Wellington on the expert role” and had asked Wellington about an engagement letter; he had replied with a blank retention letter saying he was “looking forward to working with you too.” Pawlak never executed the retention letter.

Pawlak emailed Wellington twice in the following 13 months. First, in February 2023, Pawlak emailed Wellington about another case and mentioned the present case in passing. Seven months later, in September 2023, Plaintiffs retained Wellington. Pawlak contacted Wellington one further time in October 2023 about an unrelated case and mentioned the present case. Wellington replied but did not mention this case or his recent retention.

It was worth noting that Plaintiffs had received invoices totaling $8,889.08 for the work Wellington had done thus far. Wellington could not recall Pawlak ever retaining him for this case. Pawlak had never completed Wellington’s retention form. He added that the only information he received from Pawlak was not confidential. Pawlak informed Wellington “that it was a Clean Water Act case, the names of the parties, and the address of the property.”

In determining whether to disqualify a party’s expert . . . a district court may consider such factors as:

• Whether the other party had a confidential relationship with the expert
• Whether it was objectively reasonable for the other party to believe that it had such a relationship
• Whether the other party did, indeed, disclose confidential information to the expert.

The Court noted Pawlak’s early communication with Wellington and the length of their professional history. Defendant argued that it was “objectively reasonable” to believe Wellington was Alif’s consulting expert based on the same. Plaintiffs countered Wellington had no memory or record of the Defendants providing him with any privileged or confidential information. Plaintiff asserted that Defendant never retained Wellington.

The Court, citing Wyatt v. Hanan, 871 F. Supp. 415, 419 (M.D. Ala. 1994), held that any substantial ambiguity regarding the existence of a confidential relationship between an attorney and an expert should be resolved against the attorney seeking to invoke the relationship.

Both parties agreed that Alif did not sign Wellington’s retention letter. Despite Wellington’s professional history as a consulting expert with Pawlak, Pawlak failed to from such a relationship in this case. The Court held that Pawlak had not shown she actually disclosed any confidential or privileged information to Wellington.

Held

The Court denied Defendant’s motion to exclude the testimony of Plaintiff’s expert Brian Wellington.

The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

Key Takeaways:

1. Clear Communication: It’s crucial for attorneys to clearly communicate the terms of engagement with expert witnesses, including the completion of retention forms and formal engagement letters.
2. Formal Engagement: Merely discussing a case with an expert witness or exchanging general information may not be sufficient to establish a formal engagement.
3. Expert Testimony Disqualification: Courts may consider various factors, including the existence of a confidential relationship and the disclosure of privileged information, when determining whether to disqualify an expert witness.

Case Details:

Case Caption:	Jenkins v. Plateau Excavation, Inc.
Docket Number:	3:22cv72
Court:	United States District Court, Georgia Middle
Citation:	2024 U.S. Dist. LEXIS 38606
Order Date:	March 05, 2024