Commercial Litigation and Arbitration

Examined Party (i.e., Plaintiff) Must Show Exceptional Circumstances to Depose Non-Testifying Physician Who Performs Rule 35 Examination (Caselaw Split) — Mere Fact a Testifying Physician References Non-Testifier’s Report Not Enough

Downs v. River City Group, LLC, 2013 U.S. Dist. LEXIS 14018 (D. Nev. Feb. 1, 2013):

Rule 35 governs physical and mental examinations in cases where a party's physical or mental condition is at issue. This rule provides that the party who moved for such an examination must provide a copy of the examiner's report which contains the examiners diagnoses, conclusions and test results, upon request. Fed. R. Civ. P. 35(b)(1), (2). Rule 35 itself does not provide for taking the deposition of the examiner, but merely states that it "does not preclude...deposing an examiner under other rules." Fed. R. Civ. P. 35(b)(6). Moreover, Rule 35 does not address whether the examined party may call the examiner to testify at trial as an expert. It is clear that "[t]he party conducting the examination may call the examiner to testify as an expert witness[.]" Comments to Fed. R. Civ. P. 35 (emphasis added). However, "[t]he courts are split as to whether the party who was examined may call the examiner as an expert." Id. (emphasis added).

Minnesota Life did produce Dr. Antonnucio's report to Plaintiff pursuant to Rule 35(b), but it is undisputed that Minnesota Life never designated Dr. Antonuccio as an expert witness in this case. Therefore, Dr. Antonuccio is only a non-testifying/consulting expert for Minnesota Life. The court is thus tasked with determining whether Plaintiff may depose Dr. Antonnuccio and whether she was permitted to designate him as an expert to testify at trial. As will be set forth in detail below, the court adopts the "exceptional circumstances" approach to determine this issue, and finds that such "exceptional circumstances" are not present here. ***

The court agrees with the analysis set forth in Lehan [Lehan v. Ambassador Programs, Inc., 190 F.R.D. 670 (E.D. Wash. 2000)] and adopts the "exceptional circumstances" approach and the reasoning set forth therein. See Lehan, 190 F.R.D. at 672-674. The court concurs with Lehan that this approach preserves "the fundamental principles governing litigation." Id. at 674. Having done so, the court finds Plaintiff has not met the "heavy burden" of establishing "exceptional circumstances" in this instance.

Plaintiff presents a persuasive argument that she should be allowed to depose Dr. Antonuccio because Minnesota Life's designated expert, Dr. Piasecki, relied on Dr. Antonuccio's opinions (less persuasive, however, that she should be allowed to call him as an expert witness at trial). If Dr. Piasecki is relying on Dr. Antonuccio's report, then theoretically, to be able to effectively cross-examine Dr. Piasecki, Plaintiff should first be able to depose Dr. Antonuccio.

While persuasive, the court, in its discretion, finds that this argument is insufficient to carry the "heavy burden" which is placed on a party seeking to depose an opponent's non-testifying/consulting expert witness-even one who conducted a Rule 35 examination. Plaintiff argues that she needs to depose Dr. Antonuccio in order to effectively cross-examine Dr. Piasecki; however, the court finds that Plaintiff can accomplish this by relying on the contents of Dr. Antonuccio's report, which she has been provided.

Moreover, to the extent Plaintiff argues that she should be able to depose and call Dr. Antonuccio as a witness because Dr. Piasecki's opinions are derived from Dr. Antonuccio so that their opinions can be considered collaborative, the court rejects this argument. The court was provided Dr. Piasecki's report at the hearing on Minnesota Life's motions. Other than referencing receipt and review of Dr. Antonuccio's report, it does not appear that Dr. Piasecki made any further comment on the report to demonstrate reliance on it in forming her own opinions. The court acknowledges that a collaborative arrangement may constitute "exceptional circumstances," but finds, like the court in Estate of Manship, that the record simply does not support an argument that the relationship between Dr. Piasecki and Dr. Antonuccio was collaborative, let alone "substantially" collaborative. See Estate of Manship, 240 F.R.D. at 232, 237-239.

Finally, the court cannot conclude that Plaintiff is unable to obtain equivalent information essential to her case preparation from other sources. Plaintiff has designated her own experts, Dr. Harris and Ms. Paschal, from whom she intends to elicit testimony regarding her alleged emotional distress. (See Doc. # 124-1 at 2-3.) Additionally, Plaintiff can consult with her own experts regarding the impact of Dr. Antonuccio's report, both as it stands alone and as to whether Dr. Piasecki relied on any of Dr. Antonuccio's opinions. She can also question Dr. Piasecki herself about any reliance on Dr. Antonuccio's opinions.

Editorial Note: Many cases going both ways on these issues are discussed in this opinion.

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