Expert Witness-Client Privilege

There is considerable conflict of authority as to under what circumstances an expert witness retained by one party will be allowed to testify upon request of the other party. State Highway Comm'n v. Earl, 82 S.D. 139, 142, 143 N.W.2d 88, 89 (1966). In Earl, after surveying other jurisdictions' treatment of similar situations, we declined to extend the attorney-client privilege to cover the services of a real estate appraiser who had first completed an appraisal for the defendant, and who was later called to testify by the plaintiff. We reasoned that "the mere fact the expert may have communicated his opinion of value to either the attorney or client does not make it a privileged communication." Id. at 147, 143 N.W.2d at 92. In State v. McDaniel, 485 N.W.2d 630 (Iowa 1992) the Iowa Supreme Court held that the prosecution's retainment of a psychiatrist who had initially conducted an examination on behalf of the defendant was permissible. It reasoned that the physician-patient privilege was not invoked in cases where a psychiatrist was appointed and paid for by the state. Further, it found there to be no attempt to secure privileged information from the psychiatrist, stating that by holding otherwise "a criminal defendant could block the State from the testimony of likely experts by procuring as many examinations from as many experts as possible." Id. at 633. Another case more directly on point than either Hutchinson or McDaniel is State v. Bockorny, 125 Ore. App. 479, 866 P.2d 1230 (OrCtApp 1993), where the defendant retained an expert to testify whether material found on a pair of scissors was blood. On appeal, the Bockorny court stated: "There is no dispute that, if an expert is willing to give opinions to both sides, a litigant can be placed in a difficult, if not impossible, situation at trial. However, it is not a situation prohibited by law." 866 P.2d at 1235. It reasoned that since the expert consulted with the respective parties on unrelated aspects of the case, and there was no evidence that he shared confidential information with the other side, no attorney-client or work product privilege had been violated.