Westlaw recently posted an interesting Massachusetts case at the intersection of criminal law and business law.  Massachusetts (the Commonwealth) sought to commit a defendant as a sexually dangerous person. Commonwealth v. Baxter, 94 Mass. App. Ct. 587, 116 N.E.3d 54, 56 (2018). The defendant was (at the time) an inmate because of a probation violation related to offenses of rape of a child and other crimes.  The Commonwealth retained Mark Schaefer, Ph.D., for an expert opinion, and Dr. Schaefer concluded that the defendant was, under state law, a sexually dangerous person. The hearing judge found probable cause to think the defendant was a sexually dangerous person and had him temporarily committed for examination by two qualified examiners, as required by law. Dr. Joss determined that the defendant was sexually dangerous, and Dr. Rouse Weir determined he was not.

Here’s where the business law part comes in: 

After the reports of the qualified examiners were submitted to the court, the defendant moved to exclude Dr. Joss from providing evidence at trial, or in the alternative, to appoint a new qualified examiner to evaluate the defendant. As grounds therefor, the defendant alleged that Dr. Joss and Dr. Schaefer were both among six “member/partners in Psychological Consulting Services (‘PCS’), a limited liability corporation [LLC] based in Salem, Massachusetts.” He argued that the members of the LLC have a fiduciary duty of loyalty to the company and are necessarily “dedicated to [its] financial and professional success.” Because Dr. Schaefer and Dr. Joss were “intertwined both professionally and financially,” through their partnership in PCS, the defendant claimed that their relationship “create[d] a conflict of interest and raise[d] a genuine issue of Dr. Joss’s impartiality in his role as a [qualified examiner].” The defendant offered no affidavit in support of his motion, and did not request an evidentiary hearing.

Commonwealth v. Baxter, 94 Mass. App. Ct. 587, 116 N.E.3d 54, 56 (2018) (emphasis added).  A substitute expert was substituted for Dr. Joss, and that expert determined that defendant was not sexually dangerous, and the Commonwealth appealed. 
 
In addition to the obvious error of calling an LLC a corporation (this is an error was in defendants allegations) and LLC members “partners”, there is more here.  
 
The court noted that the expert reported was not admitted in the lower court “based on ‘the appearance of an inappropriate and avoidable conflict,’” stating further the lower court judge even stated expressly, “This isn’t about actual bias.”  The court then states that “where a party seeks to disqualify an attorney for a conflict of interest, the mere appearance of impropriety without attendant ethical violations is insufficient to support an order of disqualification.” The defendant was arguing that the “partnership” (meaning membership in the LLC) worked to incentivize Dr. Joss to have the same conclusion as Dr. Schaefer so there would be no “public perception” that Dr. Schaefer was “proven wrong.” Id.
 
The court then explains that this is not a situation where the “reliability or validity” of the expert’s methods or experience were in question. As such, “In the absence of evidence suggesting that the reliability of the witness’s testimony is in doubt or that the witness is under an actual conflict of interest, the remedy for the defendant’s concerns is in forceful cross-examination and argument, not in exclusion.” Id. at 59. 
This is interesting to me.  It seems to me this is not like traditional attorney conflicts, where we want to impute knowledge of one attorney to another in the same firm because the knowledge of the first attorney could harm the client of the second.  This case is more analogous to getting a second opinion from a doctor in the same practice (or maybe network). It’s possible that the second doctor could be influenced by the first, but it’s not clearly the case. 
 
That said, I think there is something to the idea that members of a firm might have a bias in favor of the other members of the firm. But I appreciate the court’s point that it needs to be more than a mere association of the doctors.  The fiduciary duty claim here fails, in my view, without more because there is no showing that the firm benefits from a particular outcome. That is, in any given case, multiple qualified experts can come to different conclusions (as this case makes clear) and that’s plainly acceptable.  
 
Separately, this case also underscores how close a call such things are. Various experts came to different conclusions, and to some degree, at least in this case, the luck of the draw (of experts) is outcome determinative for both the Commonwealth and the defendant. I am sure there are cases where that’s less true, in favor of either side, but I suspect it’s close a lot of the time.  
 
Ultimately, this seems like the court got the rule right for future cases, though I am also not entirely clear why the order of discharge cannot stand. That is, it seems to me that just because the lower court ordered another expert review, there is no showing that the replacement expert was somehow not qualified or proper in their report. At least to the extent the standard was unclear, I might have been inclined to let the prior decision stand because I’d apply the same standard of review to all the experts in the case before excluding their work.  Perhaps the reviewing court was concerned that the lower court was expert shopping or something similar, but that’s not clear.  Regardless, it’s usually interesting when entity law works its way into criminal law.