Plaintiffs’ Opposition to Defendants’ Application for an Order to Take Out of State Depositions of Plaintiffs’ Non-Testifying Experts and Motions to Quash Commissions and Memorandum in Support

Johnson v. Alza Corp., M. O’Connor, MD and Evanston Regional Hospital

Description: This brief was filed by Heygood, Orr & Pearson on behalf of their client.

IN THE DISTRICT COURT OF THIRD JUDICIAL DISTRICT IN AND FOR
THE COUNTY OF UINTA, STATE OF WYOMING
ALISON JOHNSON and KELLIANN JOHNSON, as Co-Personal Representatives of LARRY MICHAEL JOHNSON, DeceasedPlaintiffs,

vs.

MICHAEL O’CONNOR, M.D., EVANSTON SURGICAL CENTER, LLC, a Wyoming Limited Liability Company, and EVANSTON HOSPITAL CORPORATION, a Wyoming Corporation (D/B/A EVANSTON REGIONAL HOSPITAL),

Defendants.

Civil Action No. 09-239

INTRODUCTION

This is a medical malpractice case arising from the death of Uinta County Sherriff’s Deputy Larry Johnson as a result of a fentanyl overdose.  Mr. Johnson had been given two fentanyl patches by Defendant Evanston Regional Hospital (“ERH”) that had been prescribed for post-surgical pain by Defendant Dr. O’Connor.  When he was found dead, Deputy Johnson had a lethal level of fentanyl.  The Uinta County autopsy pathologist testified that Deputy Johnson died from a fentanyl overdose.  Plaintiffs initially sued ERH, Dr. O’Connor and the manufacturers of the 50 mcg fentanyl patch Mr. Johnson was wearing when he died (the “Patch Defendants”).   Plaintiffs timely designated their testifying experts on January 13, 2012.  Among the experts were several who intended to opine on issues solely relating to the liability of the Patch Defendants.  Those experts included Joseph Stojak, Mark Prausnitz, J.C. Downs, James Morrison and Kenneth Laughery.

This case was mediated in Salt Lake City on March 9, 2012.  While the mediation was unsuccessful, Plaintiffs continued to negotiate with all parties following the mediation.  Ultimately, Plaintiffs reached a settlement with the Patch Defendants on Friday, March 16, 2012.  As a result of settling with the Patch Defendants, Plaintiffs immediately de-designated the foregoing experts, converting them to consulting-only experts.  Plaintiffs immediately informed opposing counsel of the de-designation and the cancellation of depositions of the de-designated experts so that they could cancel their travel plans the following week.

On March 27, 2012, Defendants ERH and Dr. O’Connor (“Defendants”) then filed a motion seeking to compel the depositions of Plaintiffs’ de-designated, non-testifying experts.  See Exhibit A attached hereto.  In essence, Defendants sought to co-opt these experts and convert them to Defendants’ own experts so that Defendants could blame the Patch Defendants for Deputy Johnson’s death.  But courts throughout the United States, including federal courts within the Tenth Circuit, have repeatedly held that once a testifying expert is de-designated, he becomes a consulting-only expert who may not be deposed absent a showing of exceptional circumstances.

After considering Defendants’ motion, Plaintiff’s response and Defendants’ Reply and conducting a lengthy hearing, this Court agreed with this approach, stating in a letter ruling:

There is no evidence that the designation and withdrawal of the witnesses was being done to “sandbag” the Defendants.  Rather they were witnesses in the case against the pharmaceutical company which was settled. The Plaintiffs are no longer required to produce these witnesses as experts for deposition.  The Defendants have the option to retain these witnesses in their case and to designate them as experts, or others if they won’t appear.

See Exhibit B attached hereto (emphasis added).  The Court also provided a narrow opening for Defendants to possibly depose these experts later if they could not find their own experts through the use of reasonable diligence and showed a necessity for deposing Plaintiff’s de-designated, consulting-only experts:

If defendants cannot obtain, with reasonable diligence, their own experts, the Court may, on a proper showing of necessity, grant reconsideration or relief with respect to these issues.

See Exhibit C attached hereto (emphasis added).  This language is similar to the “exceptional circumstances” necessary to allow a party to depose his adversary’s de-designated experts under Wyo. R. Civ. P. 24(b):

A party may, through interrogatories or by deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 35(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.

Wyo. R. Civ. P. 26(b)(4) (emphasis added).

Defendants have now filed the instant application seeking, for a second time, an order permitting them to depose Plaintiff’s de-designated experts.  As set forth more fully below, the Application should be denied.  First, Defendants have not shown that they used “reasonable diligence” to locate their own experts, instead merely making a handful of phone calls, most to plaintiff’s attorneys.  Second, Defendants have not shown any “necessity” for deposing Plaintiffs’ de-designated experts since they have failed to show that other experts in the same field are unavailable.  Finally, Defendants have not met the high burden of showing the “exceptional circumstances” that are required under WYO. R. CIV. P. 24(b) before a party may depose his opponent’s de-designated experts.  In fact, as set forth below, besides trying to co-opt Plaintiffs’ experts or piggyback on the efforts of other plaintiffs’ counsel, the sum total of Defendants’ efforts to locate their own experts consists of a single phone call to two college professors.  For all of these reasons, Defendants’ Application should be denied.

ARGUMENT AND AUTHORITIES

I. Defendants’ improperly characterized their motion as an “application,” causing the Commissions to be improperly issued ex parte.

Defendants filed their “Application” to issue out of state commissions to depose Plaintiff’s de-designated experts on July 11, 2012.  They also filed an accompanying Memorandum.  As stated in the Memorandum, in order to show their entitlement to the commissions they sought, consistent with the Court’s previous order, Defendants were required to show that they had used “reasonable diligence” to obtain their own experts and nonetheless had a “necessity” to depose Plaintiff’s de-designated experts.  See Defendants’ Memorandum at p. 2.  In other words, Defendants knew that issuance of the commissions was not a perfunctory administrative matter, but rather, would entail resolution of contested factual and legal issues.  Defendants also filed proposed Orders with their Application and Memorandum.  Under Wyoming law, “an application to the Court for an Order shall be by Motion . . . .”  Wyo. R. Civ. P. 7(b)(1).

Despite the fact that their filing was clearly a “motion” under the Wyoming Rules, Defendants misleadingly titled what was in reality a motion, an “application.”  Under Wyoming Rule of Civil Procedure 6(c), Plaintiffs were entitled to 20 days after service to respond.  However, as a result of the misleading characterization of their motion as an “application,” the Court improperly granted Defendant’s contested relief ex parte and signed the commissions the same day the application was filed, before it had even been received by Plaintiffs’ counselSee Exhibit G attached hereto.  This is clearly not what the Court envisioned per the terms of its June 5, 2012 letter ruling and subsequent June 27, 2012 Order.  For the reasons set forth below, Defendants’ “application” should have been denied and the erroneously issued commissions should now be quashed.

II. Defendants have not shown either “reasonable diligence” or a “necessity” for deposing Plaintiffs’ de-designated experts.

As set forth above, this is the second time Defendants have sought an order that they be allowed to depose Plaintiffs’ de-designated, consulting-only experts.  The Court denied Defendants’ first motion, finding that the issue was governed by Wyo. R. Civ. P. 24(b).  The Court, however, left open the remote possibility it would reconsider its ruling if Defendants could not find their own experts through the use of reasonable diligence and showed a necessity for deposing Plaintiff’s de-designated experts:

If defendants cannot obtain, with reasonable diligence, their own experts, the Court may, on a proper showing of necessity, grant reconsideration or relief with respect to these issues.

See Exhibit C attached hereto (emphasis added).

Defendants’ recent Application contends that Defendants have net this burden because they have been unable to find other experts who “duplicate” or “replicate” the opinions of Plaintiff’s de-designated experts.  This, of course, is not the standard imposed either by Wyo. R. Civ. P. 24(b) or by this Court’s prior order.  As set forth more fully below, Defendants have wholly failed to meet the narrow conditions imposed by the Court’s prior order and are therefore still not entitled to depose Plaintiff’s de-designated experts.

A. Defendants have not shown that they have used “reasonable diligence” to locate their own experts.

As for the first prong of the Court’s June 27, 2012 Order, Defendants have wholly failed to establish that they cannot “obtain  . . . their own experts” despite the use of “reasonable diligence.”  In fact, the materials submitted with their application establish that they have utterly failed to use reasonable diligence.  Rather, their attempt to locate other experts was, at best, half-hearted and was done simply to build a record that would enable Defendants to claim they still need to depose Plaintiffs’ de-designated experts.

1. Defendants’ general “attempts” to locate other experts were feeble and half-hearted. 

An examination of the “efforts” made by Defendants to locate their own experts clearly shows that their efforts were half-hearted at beast and hardly constitute “reasonable diligence.”  First, Defendants have known since they filed their original motion to compel on March 27, 2012, that Plaintiffs would not produce their de-designated experts for deposition.  See Exhibit A.  And yet they waited until May 16 before they made any effort to contact potential expert witnesses.  See Memorandum at exh. B, a copy of which is attached hereto as Exhibit D (showing that the first effort Defendants made to obtain experts was on May 16th).  Similarly, Defendants knew on June 5, 2012 that the Court had denied their motion and that they would need to either convince Plaintiffs’ experts to voluntarily serve as Defendants’ experts or they would need to find their own experts.  See Exhibit B attached hereto at p. 2.  And yet they inexplicably waited more than three weeks after this Court’s June 5 letter ruling to reach out to Plaintiffs’ experts.  See Memorandum at exh. A, a copy of which is attached hereto as Exhibit E (showing that the first effort Defendants made to contact Plaintiffs’ experts was on June 27th).

When they finally made any effort to obtain experts, most of Defendants’ efforts were focused on persuading Plaintiff’s de-designated experts to testify on Defendants’ behalf.  See Exhibit E at pars. 1-9.  Of course, the failure of these efforts in no way demonstrates Defendants “cannot obtain, with reasonable diligence, their own experts.”  Exhibit C.  Instead, it simply confirms that Defendants’ true desire all along has been to co-opt the experts Plaintiffs have retained, paid, worked with and helped educate.

When not trying to piggyback on the work of Plaintiffs’ counsel in this case, Defendants appear to have focused their efforts on piggybacking on the work of other plaintiffs’ lawyers.  As set forth in their own affidavits, Defendants:

  • Wrote to, emailed and called all 5 of Plaintiffs’ de-designated experts;
  • Called 13 personal injury plaintiffs’ lawyers who apparently advertise for fentanyl cases seeking the identity of potential experts; and
  • Called only 2 potential experts 2 months ago and did not hear back from them.

See Exhibits D, E attached hereto.   Rather than take the normal steps any lawyer takes to locate experts in a particular field, Defendants spent the vast majority of their time seeking experts from plaintiffs’ attorneys who advertise for fentanyl cases.  In other words, Defendants wanted someone to do their work for them.  More likely, Defendants knew these efforts would fail and were simply going through the motions so as to try to establish their inability to find their own experts so that they could co-opt Plaintiffs’ de-designated experts as they have tried to do from the start.

For several reasons, Defendants’ efforts to obtain experts from plaintiff’s lawyers were doomed to fail.  First and foremost, most of the plaintiffs’ lawyers Defendants contacted have never prosecuted a single fentanyl case; they have merely advertised for such cases, as stated in Defendants’ affidavits.  Second, plaintiffs’ lawyers are frequently protective of their experts, often times refusing to share their identity even with other plaintiffs’ lawyers.  Lastly, it is incredibly naïve to think that a personal injury plaintiffs’ lawyer would assist a medical malpractice defense lawyer with finding experts.  This is especially true where Defendants were seeking assistance from national personal injury firms who routinely refer fentanyl and other cases to the undersigned counsel.  It is difficult to imagine what possible motive such lawyers would have to assist Defendants in finding experts to use in this case.   The results would be the same if Plaintiffs’ counsel in this case had tried to locate medical experts to testify against Dr. O’Connor and the hospital by calling nationally known medical malpractice defense firms and seeking their assistance.

Besides naively seeking assistance from other plaintiffs’ attorneys, the sum total of Defendants’ efforts to locater their own experts was placing two phone calls two months ago to two different professors, one at the University of Utah and one at the University of Nebraska.  See Exhibit D attached hereto at pars. 4, 7.  When these experts — who were called on May 16, 2012 — did not respond, Defendants apparently never called then back, sent a follow-up email, sent a letter or called other professors or administrators in the same department?  They never contacted any one of the thousands of potential experts at the hundreds of other universities, hospitals and medical centers throughout the U.S.  Essentially, they did nothing, relying on two unreturned phone calls to suffice as “reasonable diligence.”

2. Defendants’ attempts to locate experts in the same specific subjects as those covered by Plaintiffs’ de-designated experts were likewise feeble and half-hearted

As set forth above, Defendants’ general “efforts” to locate their own experts were feeble and half-hearted.  This is even more obvious when the specific areas of expertise at issue are examined.

a. Forensic pathologists.

One of the de-designated experts Defendants seek to depose is forensic pathologist J.C. Upshaw Downs, M.D.   Dr. Downs is a medical examiner.  Nearly every medium or large county in the United States has a medical examiner.  Nearly all of them are forensic pathologists.  As a result, there are literally thousands of medical examiners/forensic pathologists throughout the United States who could serve as an expert on the same subjects as Dr. Downs.  According to Defendants’ Memorandum and supporting affidavits, Defendants contacted not a single one of them except Dr. Downs.  This is hardly indicative of “reasonable diligence” in finding a forensic pathology expert.

b. FDA compliance experts.

Two of the de-designated experts Defendants seek to depose, Joseph Stojak and James Morrison, are experts in FDA compliance.  They are among literally dozens of FDA compliance experts in the United States.  In fact, Plaintiffs’ counsel in this case has used other FDA compliance experts in other cases.  They were easily found using simple searches on Google.  In fact, a search for FDA compliance experts on Google yielded 5.24 million results.  Defendants apparently did nothing to locate a FDA compliance expert besides call Plaintiffs’ de-designated experts, Stojak and Morrison.  This clearly does not constitute “reasonable diligence.

c. Warnings and human factors experts.

One of the de-designated experts Defendants seek to depose is human factors/warnings expert Kenneth Laughery.   There are literally thousands of human factors experts throughout the United States.  A search for “human factors expert” on Google yielded 14.9 million results Plaintiff’s counsel herein has used other human factors experts in other cases.  Pain medicine and other doctors have also testified in other cases regarding pharmaceutical warnings.  According to Defendants’ Memorandum and supporting Affidavits, they did not contact a single human factors expert or prescribing doctor (other than Kenneth Laughery) to see if they could offer warning testimony in this case.  Defendants’ efforts fall well short of “reasonable diligence.

d. Transdermal experts.

One of the de-designated experts Defendants seek to depose is transdermal expert Mark Prausnitz, a Professor of Chemical and Biomedical Engineering at the Georgia Institute of Technology and at Emory University Medical School.  Dr. Prausnitz is not the only transdermal expert in the world.  In fact, Plaintiffs’ counsel has used at least two other experts on transdermal technology in other cases, a fact which could be gleaned by a simple use of the PACER case management system.  Transdermal experts could also be located by seeking out biomedical engineering experts, something Defendants have not done.  A search could be performed for scientific articles regarding transdermal technology; Dr. Prausnitz’s report identified numerous such studies as well as scientific articles found in journals such as The Journal of Membrane Science, The Journal of Controlled Release, The Journal of Pharmaceutical Sciences, Pharmacology and Toxicology, Journal of Pain and Symptom Management, Clinical Pharmokinetics and Pharmaceutical Research.  The authors of any of these studies or articles could potentially serve as a transdermal expert for Defendants.  Other than place a call to a single Pharmaceutical sciences professor, Defendants did basically nothing to locate a potential transdermal expert.

B. Defendants have not shown a “necessity” for deposing Plaintiff’s de-designated experts.

The Court’s June 27, 2012 Order stated that Court might consider further relief if the Defendants could not obtain their own experts with reasonable diligence and made a “proper showing of necessity.”  See Exhibit C attached hereto.  As set forth above, Defendants have not shown that they are unable to procure their own experts despite reasonable diligence.  Likewise, they have not made a “proper showing of necessity” for deposing Plaintiffs’ de-designated experts.   Specifically, Defendants have wholly failed to show that they cannot adequately defend the medical malpractice claims brought against them without access to Plaintiffs’ de-designated experts.  For this additional reason, Defendants’ Application should be denied and the improperly issued Commissions should be quashed.

C. There are numerous things Defendants could have done to locate their own experts.

As set forth above, there are numerous things Defendants could have done to locate their own experts.  After all, Plaintiffs’ counsel was able to locate their own experts as well as other experts in the same fields that they have used in other cases.  The pharmaceutical defendants in the more than 300 fentanyl patch cases handled by the undersigned have all been able to locate their own experts.  And the numerous medical malpractice defendants that have been sued in similar cases have been able to locate their own experts without co-opting their adversaries’ experts.  There is simply no justifiable reason Defendants could not locate their own experts if they actually used “reasonable diligence.”

There are numerous obvious sources of experts Defendants could have used had they really wanted to locate their own experts.  Some of these sources are as follows:

  • Running simple Google searches for experts in the fields at issue;
  • Checking the PACER database for other fentanyl cases and seeking to identify the experts used in those cases;
  • Using one of the dozens of expert witness services found on the internet, companies that specializing in locating expert witnesses;
  • Contacting counsel for any of the dozens of doctors who have been sued for improperly prescribing fentanyl patches to see what experts they have used;
  • Calling any of the numerous professional organizations employing experts in the various fields at issue;
  • Calling any of the thousands of medical examiners throughout the country to testify regarding cause of death;
  • Reviewing scientific studies, articles and journals for potential experts;
  • Calling other college and medical school professors besides the two professors they contacted.

While this list is hardly exhaustive, it gives a clear indication that the “efforts” made by Defendants fall well short of “reasonable diligence.”

III. Defendants cannot show the existence of the “exceptional circumstances” necessary to allow them to depose Plaintiffs’ de-designated experts. 

A. Defendants do not even attempt to meet the definition of “exceptional circumstances,” instead arguing only that they have been unable to locate other exerts that hold the exact same opinions as Plaintiffs’ de-designated experts.

“[T]he 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).”  Decena v. Am. Int’l Cos., Civil Action No. 11-1574, 2012 U.S. Dist. LEXIS 61303 at *5 (E.D. La. May 2, 2012).  As many courts have stated, “the party seeking discovery from the non-testifying expert consulted in anticipation of litigation carries a heavy burden in demonstrating the existence of exceptional circumstances.”  Spearman Inds., Inc. v. St. Paul Fire & Marine Ins. Co., 128 F.Supp.2d 1148, 1151 (N.D. Ill. 2001); see also FMC Corp. v. Vendo Co., 196 F. Supp.2d 1023, 1046 (E.D. Cal. April 17, 2002) (“a party carries a heavy burden in demonstrating the existence of exceptional circumstances.”).  To meet that burden, the party seeking the deposition must demonstrate that “it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.”  Wyo. R. Civ. P. 26(b)(4) (emphasis added).

Rather than argue that they have been unable to find other experts in the same field or subject area as Plaintiffs’ de-designated experts, Defendant’s Memorandum argues that they should be entitled to depose Plaintiffs’ de-designated experts because Defendants have been unable to procure the same opinions as those offered by those experts:

  • Defendants’ state that “O’Connor and the Hospital just do not have the time or resources to develop their own battery of experts to replicate the opinions of [Plaintiffs’ de-designated] experts.”
  • Defendants claim that the amount of information reviewed by Plaintiffs’ de-designated experts in forming their opinions makes it difficult or impossible for Defendants or their own experts to “duplicate the work of Plaintiff’s experts;”
  • Defendants assert that “the knowledge gained by [Plaintiffs’ de-designated] experts in the course of their prior work is likewise a unique factor that cannot be reproduced without substantial expense and time;”
  • Defendants state that their counsel consulted with potential experts but that such consultations did not lead to “the discovery of any expert who shares the opinions expressed in the reports of Morrison, Stojak, Laughery, Prausnitz or Downs.”

See Memorandum in Support of Application at p. 4, exh. A at par. 22; exh. A at par. 18 (emphasis added).  However, that is not the meaning of “exceptional circumstances.”  Parties simply have no absolute right to obtain the same or similar opinions as those offered by their adversary’s de-designated experts.  Likewise, they have no absolute right to obtain opinions which “replicate” or “duplicate” the opinions of their adversary’s de-designated experts, especially when those opinions have been developed as a result of their adversary’s expenditure of significant time, resources and money.  See, e.g., Ager v. Jane C. Stormont Hosp. & Training School for Nurses, 622 F.2d 496, 502 (10th Cir. 1980) (“Rule 26 was largely developed around the doctrine of unfairness designed to prevent a party from building his own case by means of his opponent’s financial resources, superior diligence and more aggressive preparation.”).

In determining whether “exceptional circumstances” have been shown, courts do not focus on whether a party can “replicate” or “duplicate” the opinions of their opponent’s de-designated experts through the use of other experts.  They instead focus on whether the party can obtain expert opinions on the same subject matter through the use of other experts:

the facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of ligation or preparation for trial and who is not expected to be called as a witness at trial may be discovered only (1) as provided in Federal Rule of Civil Procedure 35(b); or (2) upon a showing of exceptional circumstances under which it is impracticable for the parties seeking discovery to obtain facts or opinions on the same subject by other means.

Hartford Fire Ins. Co. v. Pure Air on the Lake, Ltd., 154 FR.D. 202, 207 (N.D. Ind. 1993) (emphasis added) (cited by Defendants in their Memorandum); see also R.C. Olmstead, Inc. v. CU Interface, LLC, 657 F. Supp.2d 899, 904 (N.D. Ohio 2009) (emphasis added) (“The opposing party can show exceptional circumstances where . . . there are no other available experts in the same field or subject area.”); Spearman Inds., Inc. v. St. Paul Fire & Marine Ins. Co., 128 F.Supp.2d 1148, 1152 (N.D. Ill. 2001) (emphasis added) (a party may show exceptional circumstances by showing that “there are no other available experts in the same field or subject area.”).  The foregoing cases are consistent with the literal language of Wyoming Rule of Civil Procedure 24(b), which states that:

A party may, through interrogatories or by deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 35(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.

Wyo. R.Civ. P. 26(b)(4) (emphasis added).  In the instant case, despite several months to do so, Defendants cannot demonstrate that they are unable to obtain expert opinions on the same subject as those covered by the reports of Plaintiffs’ de-designated experts.

B. Defendants have failed to show that it is cost prohibitive for them to retain their own experts.

Defendants’ Memorandum claims that “it will be both cost and time prohibitive, if not impossible, to replicate the opinions of Drs. Prausnitz, Downs and Laughery and Messrs. Stojak and Morrison.”  Memorandum at p. 7.  As stated above, the issue is not whether Defendants can successfully “replicate the opinions” of Plaintiffs’ de-designated experts, but whether they can “obtain facts or opinions on the same subject by other means. “ Wyo. R. Civ. P. 26(b)(4).  Moreover, Defendants have provided the Court with no evidence whatsoever regarding the cost or time that would be involved in retaining their own experts.  Instead, they merely claim that:

[Plaintiffs’ de-designated experts] are experts plaintiffs lawyers have developed over significant time and constitute a team who are routinely retained by plaintiff’s counsel.  This team relies on information derived from depositions and other discovery materials collected in the course of prior cases, information that is not otherwise available to O’Connor or the Hospital.  These witnesses are uniquely situated and equipped to provide opinions that will be relevant and useful to the jury . . . .”

Memorandum at p. 7.[1]  None of these unsubstantiated allegations supports a finding of exceptional circumstances.  Nowhere do Defendants identify the “materials collected in the course of prior cases,” describe how they were relied upon by Plaintiffs’ de-designated experts in rendering their opinions in this case or describe any alleged efforts to obtain these materials.  In truth, Plaintiffs’ de-designated experts identified in their written reports all information they relied upon in forming their opinions and Plaintiffs have produced all of those materials to Defendants.  Defendants have offered no evidence to the contrary.

Even if Defendants had offered evidence that significant costs would be incurred in obtaining their own experts, this would fall well short of meeting the high burden of showing exceptional circumstances.  In the case of In re Shell Oil Refinery, 132 F.R.D. 437 (E.D. La. 1990), Shell submitted expert reports in compliance with a court-ordered deadline for experts testifying at trial.  Shell later decided not to call some of the authors of the reports as experts at trial, transforming those witnesses into non-testifying experts whose testimony could be used by another party only upon a showing of “exceptional circumstances.” See Shell, 132 F.R.D. at 440-42. Even though the plaintiffs demonstrated that it could cost more than $300,000 to replicate the tests conducted by Shell’s experts, the court held that the plaintiffs had not shown the existence of exceptional circumstances:

Mr. Shelton was present at certain of the tests conducted by Shell and estimates that the total cost to duplicate the investigation and testing performed by Shell would be in the range of $230,000 to $315,000. . . .  [T]he plaintiffs in the case at bar do not seek Shell’s test results to understand how Shell’s experts will substantiate their conclusions at trial.  The plaintiffs want Shell’s test results to avoid the expense of conducting their own tests.  To allow discovery of Shell’s test results under these circumstances would defeat the Rule’s intended purposes of protecting trial strategy and preventing one party from having a free ride at the expense of the other party.

Id. at 442-43.

Defendants rely on a single case, Bank Brussels Lambert v. Chase Manhattan Bank, N.A., 175 F.R.D. 34, 44 (S.D.N.Y. 1997), to support their claim that “exceptional circumstances” exist in the instant case.  See Memorandum at p. 5.  In that case, Defendant BPS sought to compel the depositions of employees of Arthur Andersen, which had acted as an expert for the plaintiff Bank Group and for bankrupt corporation AroChem in analyzing AroChem’s financial condition.  While the court granted the motion, in that case, the court held that it would be impracticable for BPS to reconstruct the data relied upon by Anderson because “[i]t is likely that documents were rearranged and possible that documents were lost or altered over the course of the year that the numerous parties had unlimited, unmonitored access to the files.”  Id. at 45.  No such allegation has been made here.  Bank Brussels is also distinguishable because BPS offered evidence that the experts had spent “over 10,000 hours over the course of six months, utilizing eight to fifteen people, in investigating AroChem’s situation,” making it impossible for BPS to conduct the same investigation itself.  Id.  Here, by contrast, Defendants have offered nothing more than the unsubstantiated allegation that “it will be both cost and time prohibitive, if not impossible, to replicate the opinions of Drs. Prausnitz, Downs and Laughery and Messrs. Stojak and Morrison.”  Memorandum at p. 7.  In Bank Brussels, the court also rejected other arguments against the motion because “the party now retaining Andersen–the Bank Group–does not join in this motion opposing discovery” and because “there is no evidence that the expert opposed its employment by parties other than AroChem.”  Id.  By contrast, here, Plaintiffs oppose the instant motion and the experts at issue have already refused to work for Defendants.  Finally, the court in Bank Brussels noted that “while there may be some risk of prejudice to AroChem or the Bank Group, the parties who retained Andersen, arising from the mere fact of retention, neither party asserts that there is such risk, since neither party joined in this motion.”  Id.  Here, Plaintiffs, who retained the experts at issue, vehemently oppose Defendants’ motion.

C. Because other experts are available to testify to the same subject matter as Plaintiffs’ de-designated experts, Defendants cannot show exceptional circumstances.

As set forth above, Defendants have wholly failed to demonstrate that they are unable to obtain experts in the same field or subject area as Plaintiffs’ de-designated experts.  Where, as here, other experts are available to testify on the same subject matter as the de-designated experts, no exceptional circumstances exist and their deposition is forbidden.  See, e.g., Hansen Beverage Co. v. Innovation Ventures, LLC, Case No. 08-CV-1166-IEG, 2010 U.S. Dist. LEXIS 38653 at *6 (S.D. Cal. April 20, 2010) (finding no exceptional circumstances where de-designated expert was “not the only expert available in her field or on the particular subjects addressed in her declaration”);  Mantolete v. Bolger, 96 F.R.D. 179, 182 n. 2 (D. Ariz. 1982) (“Plaintiff has adequate ‘other means’ to obtain facts and opinions on the subject matter of this case. Discovery of the opinions of defendant’s non-witness consultant therefore cannot be allowed.”); Macario v. Pratt & Whitney Canada, Civil Action No. 90-3906, 1991 U.S. Dist. LEXIS 1164 at *3 (E.D. Pa. Feb. 1, 1991) (“Pratt & Whitney has failed to demonstrate the existence of ‘exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.’ . . . .  Pratt & Whitney’s motion to obtain the deposition of Donald Hamill is Denied.”).  For this additional reason, Defendants’ Application should be denied and the improperly issued Commissions should be quashed.

CONCLUSION

For all of the reasons set forth above, Defendants’ Application to Take Out of State Depositions of Plaintiffs’ non-testifying experts should be denied and the improperly issued Commissions should be quashed.

Respectfully submitted,

James Orr, Jr./Eric D. Pearson

Heygood, Orr & Pearson

2331 W. Northwest Hwy, 2nd Floor

Dallas, Texas  75220

Telephone: (214) 237-9001

Facsimile: (214) 237-9002

Attorneys for Plaintiffs


[1] Defendants point to the fact that “Defendant Alza produced a hard drive with millions of pages of information” and that it “has been represented that the hard drive contains more than 4,000,000 pages.”  Exhibit E at par. 20.  But Defendants fail to explain how this has anything to do with their ability to obtain their own experts in this case.  Plaintiffs’ de-designated experts never reviewed the hard drive or its 4 million pages of documents.  Moreover, all of the documents provided to the experts have been provided to Defendants.  And it took Plaintiffs’ counsel nowhere near 694 days to review the documents since many of the documents are duplicates and many large documents are obviously irrelevant based simply on their title.  Finally, it is worth noting that Defendants have had the hard drive for more than 16 months (see Exhibit F) and have apparently done nothing to review its contents.