Expert witness was attorney for relator when case was filed

LOS ANGELES -- In an increasingly unusual case brought under the False Claims Act, an expert witness admitted Tuesday to previously working as an attorney for the relator when the case was originally filed in 2014.

The defendant, business owner Tony Hang and his company Unichem, have been accused by the relator, David Ji, of defrauding the U.S. government by intentionally mislabeling tons of the supplement and food additive glycine before it passed through U.S. customs from China in order to avoid paying millions in anti-dumping duties from 2009 to 2014.

Hang denies the claims and says Ji, his former employer, is pursuing the case to hurt his business out of revenge for starting a competing business after he was fired. United States v. Pacific Chemical International Inc. 14-CV7203 (C.D. Cal., filed Sept. 15, 2014).

When Hang's attorney, Paul D. Murphy of Murphy Rosen LLP took the lectern, he did not hesitate to remind the jury, through his cross examination, that Erik D. Smithweiss of Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP, now acting as an expert witness, also worked as an attorney in the case when it was first filed in 2014. Murphy also seemed intent on illuminating the peculiarity of the circumstances.

"My question is, in the course of your entire 28 years' experience ... have you ever heard of a situation where a party retains as an expert a lawyer who previously represented a party in that same case, whether or not he was counsel of record?" Murphy asked Smithweiss.

"I'm not personally aware of any," Smithweiss admitted.

Murphy then proceeded to ask Smithweiss a series of questions relating to the importance of bias when hiring an expert witness.

"One of the most important aspects in hiring an expert, when you are looking for them, is that they have no actual bias, right?" Murphy asked.

Smithweiss, who was originally hired by Ji's former counsel as a specialist on custom and border protection, said one can hire different types of experts.

"The criteria for hiring an expert is their expertise on the subject matter and their ability to testify in a manner that will assist the court in reaching the correct results," Smithweiss told Murphy.

The trial has included several unique elements thus far. Not only is it brought under the False Claims Act -- a case type rarely taken to trial -- but since the U.S. government declined to pursue action, the relator or whistleblower, who was convicted of a felony in another matter, is litigating the case himself. Adding to the peculiarity of the case, the named defendant invoked his Fifth Amendment right to remain silent over 100 times during his testimony last week, and an additional witness also pleaded the Fifth to multiple questions.

U.S. District Judge Michael W. Fitzgerald, who has interjected several times throughout the trial to explain the proper procedure relating to these seldom-encountered circumstances, such as a former attorney in a case testifying as an expert witness, once again addressed the jury directly to offer instruction on how to treat Smithweiss' testimony.

"Here the law allows someone in Smithweiss' position to testify because it is a convenient way to find out how the custom laws work," Fitzgerald told the jury. "Whether you believe his opinion or not, whether you think it is well supported or not, and even if you believe all those things, whether you find it useful or not in the jury room are matters entirely up to you."

Fitzgerald said he hoped the trial would reach its conclusion by Thursday.