Commercial Litigation and Arbitration

Rule 26(b)(4)(B) — Exceptional Circumstances Required to Depose Non-Testifying Expert Who Was Previously Designated as Testifying Expert — Caselaw Split

Decena v. Am. Int’l Cos., 2012 U.S. Dist. LEXIS 61303 (E.D. La. May 1, 2012):

[T]he Court ordered Plaintiff to submit to an independent medical examination ("IME"), to be conducted by Defendants' designated expert, Dr. Avanelle Jack, on March 13, 2012. During the IME, Plaintiff reportedly experienced kidney failure, prompting Dr. Jack to prescribe emergency dialysis treatment. Subsequently, on April 17, 2012, Defendants notified Plaintiff's counsel that Dr. Jack would no longer be testifying as an expert and would instead be retained solely as a non-testifying, consulting expert. Accordingly, they informed Plaintiff's counsel that Dr. Jack would not be produced for deposition and would not prepare an expert report. On April 20, 2012, Plaintiff filed a Motion to Compel the Deposition of Dr. Jack and for Sanctions. In the motion, Plaintiff argued that the re-designation of Dr. Jack as a non-testifying expert does not preclude him from deposing her as a testifying expert under Fed. R. Civ. P. 26(b)(4)(A). ***

As Plaintiff's own motion acknowledges, there is no consensus of authority as to whether an expert initially designated as a testifying expert witness, but later designated as a non-testifying expert before the disclosure of her expert report, may nonetheless be deposed as a testifying expert under Fed. R. Civ. P. 26(b)(4)(A). The principal case on which Plaintiff relies, House v. Combined Insurance Co. of America, 168 F.R.D. 236 (N.D. Iowa 1996), has been described as representing the "minority approach" with respect to this issue. See R.C. Olmstead, Inc. v. CU Interface, LLC, 657 F. Supp. 2d 899, 903 (N.D. Ohio 2009). In contrast, the majority of courts to have addressed the issue have held that a party is only entitled to depose a non-testifying expert — even when the expert had previously been designated as a testifying expert — upon a showing of "exceptional circumstances," as required under Fed. R. Civ. P. 26(b)(4)(B). Id. at 904.

The courts adopting the majority rule have almost universally concluded that the purposes of Rule 26 are better served by requiring a party to show "exceptional circumstances" to depose a non-testifying expert. As these courts have noted, the purpose of Rule 26(b)(4)(A) is to ensure a party's ability to properly prepare to effectively cross examine his opponent's experts at trial. Fed. R. Civ. P. 26, Advisory Committee Notes (1970); see also Hoover v. United States Dep't of the Interior, 611 F.2d 1132, 1142 (5th Cir.1980) ("The primary purpose of [Rule 26(b)(4)(A)'s required disclosures about experts expected to be called at trial] is to permit the opposing party to prepare an effective cross-examination."). Rule 26(b)(4)(B), in contrast, is intended to prevent one party from being able to benefit from his opponent's trial preparation. See Fed. R. Civ. P. 26, Advisory Committee Notes (1970) ("A party must as a practical matter prepare his own case in advance of [disclosure of experts and reports], for he can hardly hope to build his case out of his opponent's experts."). Where an expert will not testify at trial, the purposes of Rule 26(b)(4)(A) are not served by allowing his opponent to depose the expert, as there is no need to prepare for cross-examination. See R.C. Olmstead, Inc., 657 F. Supp. 2d at 904; Estate of Manship v. U.S., 240 F.R.D. 229, 236 (M.D. La. 2006); In re Shell Oil Refinery, 132 F.R.D. 437 (E.D. La. 1990). Furthermore, permitting the deposition of a non-testifying expert will, in most cases, frustrate the purposes of Rule 26(b)(4)(B) by essentially allowing a party to utilize his opponent's expert's opinions to prepare his own case, and at his opponent's expense. The magistrate judge relied on this reasoning in her decision to adopt the majority rule on this issue, and considering the divergent opinions among the courts, as well as the absence of clear authority to the contrary from the Fifth Circuit, the Court is not persuaded that the law compels a contrary result. Accordingly, because the Court finds that the magistrate's ruling was not "clearly erroneous or contrary to law," as required under Rule 72(a),

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