Formosa Plastics Corporation, Usa v. Kajima International, Inc. ( 2006 )

NUMBER 13-02-385-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

FORMOSA PLASTICS

CORPORATION, USA, Appellant,

v.

KAJIMA INTERNATIONAL, INC., Appellee.

On appeal from the 135th District Court of Calhoun County, Texas.

DISSENTING OPINION ON MOTION FOR REHEARING

Before the Court En Banc Dissenting Opinion by Justice Yañez

The majority holds that appellant, Formosa Plastics Corporation, USA ("Formosa"), failed to meet its burden for disqualifying Kajima's expert witness, A. W. "Chip" Hutchison ("Hutchison"). Because I would hold that the trial court erred in refusing to disqualify Hutchison on the basis of "side-switching," I would sustain Formosa's third issue, reverse the trial court's judgment, and remand for a new trial. Accordingly, I respectfully dissent.

I. Background

In 1993, Kajima sued Formosa for breach of contract, fraud, quantum meruit, and negligent representation arising from construction contracts for work Kajima performed at Formosa's expansion plant project in Point Comfort, Texas. ⁽¹⁾ In 1997, following a jury trial, the trial court rendered judgment for Kajima for $5,591,066.65. Kajima appealed, contending, among other things, that the trial court erred in refusing to submit a broad form fraud question. This Court reversed and remanded to the trial court for a new trial. See Kajima Int'l, Inc. v. Formosa Plastics Corp., 15 S.W.3d 289, 294 (Tex. App.-Corpus Christi 2000, pet. denied).

On remand, Kajima non-suited all of its claims except fraud. Following a jury trial, the trial court rendered judgment in favor of Kajima and awarded it $15,432,123.45 in actual damages, plus pre-judgment interest of $14,210,269.65 and $403,156.86 in costs. This appeal followed.

II. Disqualification of Kajima's Expert Witness

A. Background Facts of "Side-Switching" Issue

In its third issue, Formosa contends the trial court erred in refusing to disqualify Hutchison as Kajima's expert witness because of "side-switching." In 1993, Formosa's former outside counsel, Jones, Day, Reavis & Pogue ("Jones Day"), retained Steve Huyghe, an associate of Hutchison's at A. W. Hutchison & Associates, Inc. ("AWH"), ⁽²⁾ and the firm, AWH, as Formosa's consulting experts in connection with the Kajima lawsuit. On October 4, 1993, Huyghe and an associate met with lawyers at Jones Day to discuss the suit. Over the next few months, Huyghe and AWH performed work for Formosa. By the end of December 1993, Formosa had paid AWH $20,875.89 for work done on the Kajima case.

In December 1993, Formosa transferred its defense from Jones Day to Porter & Hedges. On December 3, 1993, Huyghe met with lawyers from Jones Day and Porter & Hedges to discuss the case. In April 1994, Porter & Hedges told Huyghe that his work for Formosa was "on hold."

A few months later, in August 1994, Kajima's lead counsel, Steve Lownds, contacted Huyghe about AWH working on the case for Kajima. Huyghe notified Margaret Kelihar, an attorney at Jones Day, Formosa's former counsel, that he had been contacted by Kajima. Kelihar testified she told Huyghe his knowledge and involvement in the case "would make it difficult for him to represent the other side" and advised him to notify Porter & Hedges. Huyghe did not notify Porter & Hedges or Formosa. Lownds prepared a "conflict certification," which stated, "I hereby certify that A.W. Hutchison and Associates, Inc., has not received any confidential information from any Formosa entity or from its counsel related in any manner to this litigation." Huyghe testified that he signed the certification form, even though Lownds did not explain or provide a definition of "confidential information."

Formosa did not learn that Hutchison and Brian Rogers (also of AWH) had been designated as Kajima's testifying experts until September 19, 1995. Several weeks later, on October 4, 1995, Formosa filed a motion to strike Hutchison and AWH as Kajima's expert witnesses for "side-switching." Following a hearing, the trial court denied Formosa's motion.

B. Kajima's Arguments

In response to Formosa's "side-switching" argument, Kajima argues the trial court was not required to disqualify Hutchison because: (1) even though Formosa initially shared some non-confidential information with Huyghe, who worked for A. W. Hutchison of California, no conflict exists between the work initially performed by Huyghe for Formosa and the work later performed by Hutchison for Kajima because Hutchison worked for AWH, a separate corporate entity based in Atlanta; (2) any information given to Huyghe by Formosa was discoverable and thus was not confidential; (3) Formosa did not directly share confidential information with Hutchison or Huyghe; and (4) the attorney vicarious-qualification rules do not apply to expert firms.

C. Standard of Review and Applicable Law

We review a trial court's decision on whether to disqualify an expert witness for an abuse of discretion. ⁽³⁾ The test for an abuse of discretion is whether the trial court acted without reference to any guiding rules or principles. ⁽⁴⁾ A trial court has no discretion to determine what the law is or in applying the law to the facts. ⁽⁵⁾

An appellate court is not obligated to give any particular deference to a trial court's legal conclusions. ⁽⁶⁾ We review questions of law de novo. ⁽⁷⁾

Disqualification of an expert that switches sides in a lawsuit is an issue of first impression in Texas. However, the Fifth Circuit has addressed the test courts should apply when determining whether to disqualify an expert witness who has previously been retained to consult with another party. ⁽⁸⁾

In Koch, the Fifth Circuit adopted the two-part test adopted by the majority of courts that have considered the issue: (1) was it objectively reasonable for the first party who claims to have retained the expert to conclude that a confidential relationship existed between that party and the expert; and (2) did the first party disclose any confidential or privileged information to the expert? ⁽⁹⁾

Courts have the inherent power to disqualify experts. ⁽¹⁰⁾ That 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. ⁽¹¹⁾

Accordingly, I agree with the majority's adoption of the two-part expert-qualification test outlined in Koch. ⁽¹²⁾ The party seeking disqualification bears the burden of proving both elements of the test. ⁽¹³⁾

In Koch, the Fifth Circuit noted that in cases where an expert has switched sides,

no one would seriously contend that a court should permit a consultant to serve as one party's expert where it is undisputed that the consultant was previously retained as an expert by the adverse party in the same litigation and had received confidential information from the adverse party pursuant to the earlier retention. This is a clear case for disqualification. ⁽¹⁴⁾  

The Koch court notes that the two-part test thus applies to "disqualification cases other than those in which the expert clearly switched sides." ⁽¹⁵⁾ In the present case, Kajima disputes whether Formosa's earlier retention and passage of confidential information occurred. Thus, I would apply the two-part test outlined in Koch. ⁽¹⁶⁾

Kajima argues that because Formosa failed to request findings of fact and conclusions of law with regard to the disqualification issue, this Court must presume that the trial court made "implied findings" in support of its judgment. In support of its argument, Kajima cites Lemons v. EMW Mfg. Co., 747 S.W.2d 372, 373 (Tex. 1988), Gutierrez v. Elizondo, 139 S.W.3d 768, 773 (Tex. App.-Corpus Christi 2004, no pet.), and Valley Mechanical Contractors v. Gonzales, 894 S.W.2d 832, 834 (Tex. App.-Corpus Christi 1995, no writ). Those cases stand for the well-settled proposition that in a non-jury trial, where findings of fact and conclusions of law were neither requested nor filed, it will be implied that the trial court made all necessary findings to support its judgment. ⁽¹⁷⁾ Here, however, Kajima argues that we must defer to the trial court's "implied findings" with respect to the court's denial of Formosa's motion to strike Kajima's expert. I am unpersuaded by Kajima's argument.

In any case tried in the district or county court without a jury, any party may request the trial court to state in writing its findings of fact and conclusions of law. ⁽¹⁸⁾ Any party may also request additional or amended findings of fact and conclusions of law if he believes the court's findings and conclusions are deficient in some respect. ⁽¹⁹⁾ The court must make findings and conclusions on ultimate or controlling issues, but is not required to do so on evidentiary issues. ⁽²⁰⁾ An ultimate fact issue is one that is essential to the right of the action, while an evidentiary issue is one that the jury may consider in deciding the controlling issue, but that is not a controlling issue itself. ⁽²¹⁾ Here, the issue of whether Kajima's expert witness was disqualified because of alleged "side-switching" was not a controlling issue. Accordingly, it would have been inappropriate for Formosa to request findings of fact and conclusions of law with regard to the issue. I reject Kajima's argument that we must defer to the trial court's "implied findings" on the issue. ⁽²²⁾

Here, the trial court filed a "letter to the file" on October 20, 1995 explaining its reasons for denying Formosa's motion to strike. The court noted that the letter was "not intended as a finding of fact or a conclusion of law" but only as a "brief insight into [its] analysis." The letter stated:

During our courtroom discussions about the appropriateness of hiring somebody else's witness, we referred to this set of facts as failing to pass the "smell test." Although that doesn't offend me, I think it is an inappropriate concept. For instance, when dealing with cases of first impression, I think a trial court must be cautious, very cautious, in establishing a bright line where none exists, especially if the resulting decision is disqualification. The testimony of former Justice Cook was interesting and, as a guideline for practicing attorneys, is one I would like to follow; however, when advocacy and blurred lines of ethical conduct conflict, it is oppressive to require an attorney to ignore what is good for his client and take the subjective high road. When in doubt, I do not believe a trial court should presume that disqualification is the answer. I would suggest it's the opposite. Consequently, I find myself unwilling to require the Plaintiff to meet the subjective test that may exist in one group's mind. Although the hiring of witnesses previously employed by one side might be perceived as inappropriate, until a clear rule is established before the conduct occurs, it shouldn't be condemned, I'm unwilling to begin the process. One might say it is unfair to hire somebody else's expert, but in the absence of rules clearly prohibiting such acts, it is oppressive to prohibit the use of those experts by opposing counsel. This is especially true when there are ways to protect confidentiality.

I have taken the time to discuss my ruling, but it is not intended as a finding of fact or a conclusion of law. It only illustrates a brief insight into my analysis.

Based on the trial court's comments, I conclude the trial court failed to apply the two-part expert-disqualification test outlined by the Fifth Circuit in Koch.

D. Analysis

I begin by addressing the first part of the two-part test outlined in Koch: whether it was objectively reasonable for Formosa to conclude that it had established a confidential relationship with Huyghe and AWH. I conclude that it was.

Kelihar testified at the hearing on Formosa's motion to strike ⁽²³⁾ that in 1993, Formosa retained Huyghe and AWH, but that a confidentiality agreement was not considered necessary because Jones Day had "used [Huyghe] as an expert before." The record contains copies of invoices to Jones Day from AWH ⁽²⁴⁾ for services rendered for Formosa, including preparation of a "work plan," compilation of "key project documents," review of "project documentation," and "discussion with staff." The record also contains a copy of a check from Formosa, dated December 21, 1993, in the amount of $20,875.89 to AWH at its Atlanta office for work on the "Kajima case." A January 7, 1994 letter to Huyghe from Formosa refers to invoices from AWH "for services provided to Formosa as requested by Jones, Day, Reavis & Pogue" and asks about the location of "the work product your company produced." In response, a letter from Huyghe identifies the "work product" produced by the firm as including an "original claims work plan prepared to outline our proposed method for evaluating the performance of Kajima," and an "index and review of documents received to date" from Kajima. An April 15, 1994 letter from Huyghe to an attorney at Porter & Hedges notes that the "initial assignment" to "review and critique Kajima's claim and to research the Formosa records, identifying pertinent documents" has been completed. Based on this evidence, I would hold that it was objectively reasonable for Formosa to conclude that a confidential relationship existed with Huyghe and AWH.

Next, I consider whether Formosa disclosed confidential information to Huyghe. Kelihar testified that in several meetings, she discussed with Huyghe: (1) Formosa's "strategies for this case and what kind of defense we ought to establish;" (2) information gathered from interviews of potential witnesses for Formosa and what testimony such witnesses could provide; (3) which witnesses might be "good" and "bad" for Formosa; and (4) the amount of money Formosa was willing to expend to settle Kajima's claims. A letter dated October 19, 1993 from Huyghe to Jones Day describes AWH's initial budget estimate for additional services based on its "knowledge gained to date" from reviewing Formosa documents and its development of a "claims work plan." The October 19, 1993 letter is labeled "Privileged & Confidential."

Ken Alexander, a partner with Porter & Hedges, testified that on December 3, 1993, following Formosa's transfer of its defense from Jones Day to Porter & Hedges, he met with Huyghe and several of the Jones Day attorneys. At the meeting, Huyghe said he had been retained by Formosa. Alexander understood that Formosa had retained AWH and that Huyghe worked for the firm. Alexander testified that at the meeting, Huyghe made a case for "what A.W. Hutchison had to offer," and said that Chip Hutchison (who later became a testifying expert for Kajima) had "expertise to offer to [Formosa's] lawyers in whatever way it was needed to assist with the defense of the case." Alexander said that they discussed Kajima's claims and "the ways in which we would go about responding to those claims." Alexander said he considered the information exchanged at the meeting confidential. Similarly, at the trial in the present case, Alexander testified that at the meeting, he discussed confidential information with Huyghe, including Formosa's probable defenses to Kajima's claims, evidence that might be developed and had been developed up to that time, matters pertaining to potential witnesses, "strategies," and various other confidential matters.

Kajima argues that no confidential information was shared with Huyghe, and even if it was, that such information cannot be imputed to Hutchison. Kajima points to the fact that Kelihar failed to identify specific confidential documents that Formosa provided to Huyghe and to Huyghe's testimony that in all of his meetings with Formosa's attorneys, he was not exposed to and did not discuss any information he considered confidential. Kajima argues that Huyghe's work for Formosa was limited to the preparation of a document index.

Kajima's arguments are not persuasive. Huyghe's statement that he did not discuss anything with Formosa that he considered confidential is conclusory. ⁽²⁵⁾ Kelihar's uncontroverted testimony that Huyghe discussed Formosa's defense strategies, potential witnesses, and willingness to settle establishes that Formosa provided confidential information to Huyghe. ⁽²⁶⁾

Kajima also argues that even if confidential information was disclosed to Huyghe, the trial court did not err in allowing Hutchison to testify for Kajima because Huyghe was employed by A.W. Hutchison of California, Inc., which was a separate entity from Hutchison's firm, AWH, in Atlanta. ⁽²⁷⁾

Huyghe's own testimony contradicts Kajima's argument. Huyghe testified that A.W. Hutchison & Associates, Inc. of California and AWH were both owned by Chip Hutchison. At the hearing on the motion to strike, Huyghe also testified as follows:

Q [Formosa's counsel]: And, again, when you talk about "our professional team," you're including Mr. Chip Hutchison in that, correct?

A [Huyghe]: Yes. We have-- our company is broken into divisions. We have an Industrial Division, a team of experts, who have got twenty to thirty years. And--

Q: And, Mr. Chip Hutchison is part of that team of experts, correct?

A: Yes.

. . . .

Q: Okay. If you look down on your little logo and so forth on the bottom there, it says, in big letters, "A.W. Hutchison and Associates, Incorporated," and, then, you've got, "Atlanta, Los Angeles, Washington, D.C." under that, correct?

A: Correct.

Q: And, these are all part of A.W. Hutchison and Associates, Inc., correct?

A: Yes.

In addition, Huyghe's June 14, 1993 and October 19, 1993 (marked "Privileged and Confidential") letters to Jones Day and his April 15, 1994 letter to Porter & Hedges were copied to Hutchison. ⁽²⁸⁾ The April 15, 1994 letter states that AWH's initial assignment, which was to review and critique Kajima's claim and to research Formosa records, identifying pertinent documents, has been completed. The letter requests another meeting with Formosa's attorneys for the purpose of discussing in detail AWH's suggestions for resolving and defending against Kajima's allegations. Kelihar testified that Huyghe said that by hiring the firm, Formosa was retaining the option of having Hutchison available to testify, if Formosa so chose. Similarly, Alexander testified that Huyghe represented that Hutchison's expertise was available to Formosa "in whatever way it was needed to assist with the defense of the case." Huyghe testified that he "shared with Chip [Hutchison]" that he had met with several of the Jones Day lawyers who then represented Formosa. Huyghe also testified that he later turned over his "entire project file" regarding the case to Lownds, Kajima's counsel. The file included documents that had been provided to Huyghe by Formosa. I conclude that confidential information provided to Huyghe was also provided to Hutchison.

In its motion for rehearing, Kajima argues that this Court's panel opinion in this case ⁽²⁹⁾ erroneously rested on the doctrine of imputed disqualification. Specifically, Kajima asserts that "the majority mistakenly equated expert disqualification with attorney disqualification even though case law disclaims this equation." I emphasize that neither this Court's prior panel opinion nor this dissenting opinion rests on the doctrine of imputed disqualification. Expert disqualification absent strict satisfaction of the two-part test outlined in Koch is the minority rule and is fashioned after the rigid standards governing conflicts of interest involving attorneys. ⁽³⁰⁾ As noted above, I agree with the adoption of the two-part expert-disqualification test outlined in Koch and have applied it to reach my dissenting opinion in this case.

At the hearing on Formosa's motion to strike, former Supreme Court Justice Eugene Cook testified for Formosa as an expert on rules concerning conflicts of interest and disqualification of experts and the public policy reasons for such rules. Justice Cook provided the following testimony:

Q [Formosa's counsel]: Justice Cook, what is the general rule regarding disqualifications?

A [Justice Cook]: It's really pretty simple. An expert, like an attorney, is not permitted to change sides in the middle of a lawsuit.

Q: Why is that?

A: There's several reasons. Probably, one of the most fundamental reasons is that it-- it adversely effects public confidence in your entire legal system. If the people out there perceive that you can hire an expert and, later, he can change sides, it's going to lower the overall esteem that people have for the lawyers in this Country and, in fact, the entire system of justice. It's fundamentally unfair for one side to hire an expert and for another side to later come in and hire the same expert to testify against them. And, probably, a third reason, this is a very simple reason, if it doesn't pass the smell test. Lawyers and judges are supposed to avoid the appearance of impropriety. This clearly does not pass that smell test.

. . . .

Q: What conclusion have you reached, in your own mind, about whether A.W. Hutchison and Associates has such a conflict of interest that requires disqualification?

A: My opinion is that it has such a disqualification. My opinion is based upon the following factors: First, there was testimony, today, that the settlement authority was disclosed, that the defenses were disclosed. This, clearly, is confidential information. One of the letters from A. W. Hutchison is stamped, "privileged and confidential," which is an admission. In listening to Mr. Huyghe testify, he talked about a short involvement. He talked about a copy of everything that comes out of our file goes to the corporate . . .Mr. Chip Hutchison. He talks about the fact that he was paid over Twenty Thousand Dollars. He understood his services would be on hold. And, the original assignment, from what I took down, was to review and critique the Plaintiff's claims. If you allow this sort of conduct to stand and for him to testify, you're going to create serious doubt on the entire integrity of our legal system.

Hutchison's testimony involved all aspects of Kajima's case, including liability, causation, and damages. He testified that Formosa defrauded Kajima, that Formosa knew of significant problems with the drawings before it signed contracts with Kajima, that the problems caused delays, and that the delays resulted in losses to Kajima. Hutchison also testified regarding the method for calculating Kajima's damages. I conclude that Hutchison's testimony was critical to Kajima's case. I would hold that without his testimony, the judgment must be reversed and the case remanded for a new trial.

III. Justice Castillo's Waiver Argument  

Justice Castillo contends that Formosa waived its right to seek disqualification of Hutchison and AWH by failing to assert a claim of confidentiality over information Formosa provided to and the work product created by Huyghe. Justice Castillo argues that "Formosa had at least five opportunities" to establish the confidentiality of information it provided to Huyghe, and that by failing to do so, Formosa waived its right to assert a claim of confidentiality.

Justice Castillo argues Formosa initially failed to address the confidentiality issue at several points during the fall of 1993 when Huyghe was performing work for Formosa at the request of Jones Day. According to Justice Castillo, Formosa missed a fourth "opportunity" when it transferred its defense from Jones Day to Porter & Hedges in December 1993, and Porter & Hedges failed to clearly establish confidentiality over information provided to and work product created by Huyghe. Finally, Justice Castillo argues, Formosa missed its fifth "opportunity" when it failed to object after "Huyghe reported the initial contact by Kajima."

With respect to Formosa's failure to address the confidentiality issue with Huyghe at the outset, I note that Kelihar testified at the hearing on Formosa's motion to strike that in 1993, Formosa retained Huyghe and AWH in connection with the Kajima lawsuit. She also testified that it "wasn't necessary for us to enter into a confidentiality agreement with [Huyghe] before we disclosed confidential information" because Jones Day had "used [Huyghe] as an expert before."

With regard to the fourth "opportunity," when Porter & Hedges assumed Formosa's defense, Alexander testified he understood that AWH had been retained by Formosa and that Huyghe worked for the firm. He also testified that until he learned in late September 1995 that Kajima had named Hutchison as its expert, he believed Formosa still retained the option of using Hutchison in whatever capacity it chose. ⁽³¹⁾

Justice Castillo contends Formosa missed a fifth "opportunity" when it failed to object after Huyghe "reported the initial contact by Kajima." The record reflects, however, that in 1994, Huyghe "reported" that he had been contacted by Kajima only to Kelihar at Jones Day, Formosa's former counsel. Kelihar testified that Huyghe said he had been approached by Kajima to be an expert and asked her opinion regarding whether the work he and the firm had earlier performed for Formosa could result in a conflict. Kelihar told Huyghe she thought he "knew some things that . . . would make it difficult for him to represent the other side" and that he should contact Porter & Hedges. Huyghe admitted that he never called Porter & Hedges to let Formosa know that AWH had signed up with Kajima. Formosa learned that Hutchison and Brian Rogers (also of AWH) had been designated as Kajima's testifying experts on September 19, 1995, when Formosa received Kajima's supplemental interrogatory responses. Approximately two weeks later, on October 4, 1995, Formosa filed its motion to strike. The trial court held a hearing on Formosa's motion on October 12, 1995.

By filing its motion to strike only a few weeks after learning of Kajima's designation of experts, Formosa preserved its right to seek disqualification of Hutchison and AWH. ⁽³²⁾

IV. Conclusion

I would hold Formosa met its burden of establishing that: (1) it reasonably concluded that it had a confidential relationship with Huyghe and AWH; and (2) it disclosed confidential information to Huyghe and AWH. ⁽³³⁾ Accordingly, I would hold that the trial court abused its discretion in refusing to disqualify Hutchison as an expert witness for Kajima. I would reverse the judgment of the trial court and remand this case for a new trial in which Hutchison would not be permitted to testify as an expert witness.

LINDA REYNA YAÑEZ

Justice

Dissenting Opinion on Rehearing En Banc

delivered and filed this the 28th day of December, 2006.  

1. For a more detailed explanation of the background facts, see this Court's opinion in Kajima Int'l, Inc. v. Formosa Plastics Corp., 15 S.W.3d 289, 294 (Tex. App.-Corpus Christi 2000, pet. denied).

2.

At the trial in the present case, Hutchison testified that in 1993, he was the sole owner of A. W. Hutchison of California, then a wholly-owned subsidiary of A. W. Hutchison & Associates, Inc. Hutchison testified that he later merged A. W. Hutchison of California into A. W. Hutchison & Associates, Inc.

3.

See Koch Ref. Co. v. Jennifer L. Boudreaux MV, 85 F.3d 1178, 1181 (5th Cir. 1997).

4.

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1986).

5. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).

6.

Pegasus Energy Group v. Cheyenne Pet. Co., 3 S.W.3d 112, 121 (Tex. App.-Corpus Christi 1999, pet. denied).

7.

Id.

8.

See Koch, 85 F.3d at 1181. I note that absent controlling authority from the Texas Supreme Court, we may look to the Fifth Circuit for guidance. See Virginia Indon. Co. v. Harris County Appraisal Dist., 910 S.W.2d 905, 914 (Tex. 1995) (noting "guidance" provided by Fifth Circuit); Cabla v. State, 6 S.W.3d 543, 547 (Tex. Crim. App. 1999) (noting that regarding issues of first impression, Texas courts look to prior decisions of United States Supreme Court and Fifth Circuit for guidance); Corkery v. Texas Christian Univ., 955 S.W.2d 424, 426 (Tex. App.-Fort Worth 1997, pet. denied) (following Fifth Circuit's guidance in analyzing issue).

9.

Id.; see also, e.g., Turner v. Thiel, 553 S.E.2d 765, 768 (Va. 2001) (adopting and applying two-part test to disqualify expert in medical malpractice case); Mitchell v. Wilmore, 981 P.2d 172, 175-77 (Colo. 1999) (applying two-part analysis to disqualify car accident reconstruction expert); Nelson v. McCreary, 694 A.2d 897, 903-04 (D.C. 1997) (applying two-part test to deny disqualification of medical expert who had been paid by both sides, due to lack of confidential or privileged information).

10.

Koch, 85 F.3d at 1181.

11.

Paul v. Rawlings Sporting Goods Co., 123 F.R.D. 271, 277-78 (S.D. Ohio 1988).

12.

Koch, 85 F.3d at 1181.

13.

Id.

14.

Id. (quoting Wang Lab., Inc. v. Toshiba Corp., 762 F. Supp. 1246, 1248 (E.D.Va.1991) (citations omitted) (emphasis added)).

15.

Id. (emphasis added). In Koch, an insurer retained an expert in an insurance dispute with two other parties. Id. After the insurer settled with the two parties, the expert was retained by parties adverse to the insurer. Id. Thus, the Koch court characterized the case not as one in which the expert switched sides, but as one in which the party changed its position. Id.

16. See id.

17.

See Lemons, 747 S.W.2d at 373; Elizondo, 139 S.W.3d 768, 773; Gonzales, 894 S.W.2d 832, 834.

18. See Tex. R. Civ. P. 296.

19. See Tex. R. Civ. P. 298.

20.

See Asai v. Vanco Insulation Abatement, Inc., 932 S.W.2d 118, 122 (Tex. App.-El Paso 1996, no pet.).

21.

Limbaugh v. Limbaugh, 71 S.W.3d 1, 6 (Tex. App.-Waco 2002, no pet.).

22.

See IKB Indus., Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 442 (Tex. 1997) (noting that when findings of fact are not required but are helpful, they do not have the same weight on appeal as findings made under rule 296 and are not binding on the appellate court).

23.

Attached to Formosa's "Motion to Reconsider Striking Plaintiff's Expert Witness - A. W. Hutchison," filed February 5, 2002 in the 135th District Court of Calhoun County is the statement of facts from the hearing on Formosa's "Motion to Strike Experts," held on October 12, 1995, before the Honorable Michael M. Fricke, presiding judge of County Court-at-Law No. 1 in Calhoun County in trial court cause number 93-CV-29, styled Kajima Int'l, Inc. v. Formosa Plastics Corp., which ended in a mistrial in April 1996. Unless otherwise noted, all references to "testimony" and "the hearing" in this opinion refer to testimony at the October 12, 1995 hearing.

24. The invoices are identified as from "A.W. Hutchison & Associates, Inc." at its office in Atlanta, Georgia.

25. See In re Amer. Home Prods. Corp., 985 S.W.2d 68, 74 (Tex. 1998) (conclusory opinions of witnesses regarding what is "confidential information" does not raise fact issue).

26.

See Koch, 85 F.3d at 1182 ("confidential information" includes discussion of a party's strategies in litigation, the kind of experts that the retaining party expected to employ, a party's view of the strengths and weaknesses of each side's case, the role of each party's witnesses to be hired, and anticipated defenses).

27.

See footnote 2.

28. Huyghe testified that it was "corporate policy" that a copy of "everything that came out of [AWH's California] office" went to AWH's Atlanta office.

29. Formosa Plastics Corp., U.S.A. v. Kajima Int'l, Inc., No. 13-02-00385-CV, 2004 Tex. App. LEXIS 9950 (Tex. App.-Corpus Christi Nov. 10, 2004).

30.

See In re Mitchell, 981 P.2d 172 (Colo. 1999) (discussing cases).

31. Alexander also testified at the present trial (in February 2002) that after Porter & Hedges assumed Formosa's defense, he had several telephone conversations with Huyghe involving confidential information.

32.

See In re Amer. Home Prods. Corp., 985 S.W.2d at 73 (delay of less than two months in filing motion to disqualify counsel did not constitute waiver of right to disqualify) (citing Rio Hondo Implement Co. v. Euresti, 903 S.W.2d 128, 131 (Tex. App.-Corpus Christi 1995, orig. proceeding) (holding that two and one-half month delay does not constitute waiver of right to disqualify)).

33.

See Koch, 85 F.3d at 1181.