Plaintiffs’ Opposition to Defendants’ Motion to Compel Depositions of Plaintiffs’ Non-Testifying Experts

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

Description: This case was a product liability and medical malpractice suit brought as the result of the death of a Wyoming Sheriff’s Deputy due to a defective and improperly prescribed fentanyl pain patch. After settling with the manufacturer of the pain patch, Plaintiffs de-designated their expert witnesses who had intended to provide opinions relating to the manufacturer of the patch. The remaining defendants, the doctor who improperly prescribed the patch and the hospital where he worked, wanted to use these experts as their own so they could blame the patch manufacturer at trial. On behalf of the Plaintiffs, Heygood, Orr & Pearson argued that the experts, despite having provided written reports, became consulting-only experts once they were de-designated. As such, they argued, the experts could only be deposed upon a showing of “exceptional circumstances” under which the remaining defendants were unable to procure their own experts on the subjects at issue. The HOP lawyers argued that the remaining defendants had not shown, and could not show, the existence of such “exceptional circumstances.” The trial court agreed, denying the defendants’ attempts to compel the experts’ depositions. 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,

v.

ALZA CORPORATION, JANSSEN PHARMACEUTICA PRODUCTS, L.P., JANSSEN, L.P., JANSSEN PHARMACEUTICA, INC., and ORTHO-MCNEIL-JANSSEN PHARMACEUTICALS, INC., 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. See Exhibit A. 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. See Exhibits B-D. 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. See Exhibit C. The de-designated experts do not wish to be deposed, do not wish to provide trial testimony in this case and do not wish to act as expert witnesses for the Defendants herein.

Defendants ERH and Dr. O’Connor (“Defendants”) now seek to compel the depositions of the de-designated, non-testifying experts whose opinions relate solely to the liability of the Patch Defendants, with whom Plaintiffs have settled. In essence, Defendants seek to co-opt these experts and convert them to Defendants’ own experts so that Defendants can 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. For these reasons, as set forth more fully below, Defendants’ Motion should be denied and Defendants should be required to obtain their own experts rather than co-opt Plaintiffs’ de-designated experts.

ARGUMENT AND AUTHORITIES

I. Defendants are required to demonstrate “exceptional circumstances” before they can depose Plaintiffs’ de-designated experts.

A. De-designated experts become consulting experts who cannot be deposed absent a showing of exceptional circumstances.

As set forth above, on January 13, 2012, Plaintiffs previously designated experts Joseph Stojak, Mark Prausnitz, J.C. Downs, James Morrison and Kenneth Laughery. See Exhibit A. Later, on March 16, 2012, before any of them had been deposed, Plaintiffs de-designated these experts as testifying experts. See Exhibit B. Plaintiffs also clearly informed Defendants that these experts were not expected to be called as witnesses at trial and were therefore consulting-only experts. This de-designation was not a result of gamesmanship, as Defendants suggest, but simply as a result of the fact that Plaintiffs settled with the Patch Defendants and therefore had no need to present trial testimony from their patch experts. Wyoming Rule of Civil Procedure 26(b)(4)(B) 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.

Wy. Rule Civ. P. 26(b)(4) (emphasis added). Under this Rule, Defendants cannot take the depositions of Plaintiffs’ de-designated, non-testifying experts absent a showing of “exceptional circumstances.”

The result is the same under the identically-worded Federal Rules. For example, in the case of Mantolete v. Bolger, 96 F.R.D. 179 (D. Ariz. 1982), the defendant in an employment discrimination case designated a rehabilitation engineer as a testifying expert. After plaintiff noticed the expert’s deposition, the defendant decided to de-designate the expert and informed the plaintiff that the deposition would not go forward. The plaintiff filed a motion to compel the deposition of the expert. The court denied the motion, concluding that:

Rule 26(b)(4)(A) allows an opponent to discover the name and substance of the testimony of experts who will testify at trial. Rule 26(b)(4)(B), on the other hand, governs the facts and opinions of experts who are not to be used at trial, but are instead retained only in anticipation of litigation or preparation for trial. These experts are subject to a more restrictive discovery standard. For experts not expected to testify, the rule is that discovery can only take place 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.”

Id. at 181.

In the case of FMC Corp. v. Vendo Co., 196 F. Supp.2d 1023 (E.D. Cal. April 17, 2002), a property owner, FMC, sued several defendants (known as “Vendo/Floway”) for allegedly contaminating its property with TCE. Vendo/Floway filed a third-party complaint against BNSF Railroad, alleging that it was responsible for contaminating groundwater that flowed onto FMC’s property. FMC and Vendo/Floway settled their claims and, as part of the settlement, FMC agreed not to assist BNSF and to de-designate its designated experts. When BNSF tried to depose FMC’s previously designated experts, Vendo/Floway filed a motion to quash, arguing that BNSF could not prove the “exceptional circumstances” necessary to allow it to depose FMC’s de-designated experts. Id. at 1041. BNSF argued that the exceptional circumstances test did not apply because FMC had previously designated the experts as testifying experts and produced their reports. Id. at 1042. After conducting a detailed analysis of the relevant case law, the court determined that the exceptional circumstances test applied. Id. at 1046. Noting that “a party carries a heavy burden in demonstrating the existence of exceptional circumstances,” the court granted the motion to quash, finding that BNSF had failed to show that other experts were unavailable. Id. at 1046-47; see also 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) (“[T]he majority approach in federal jurisprudence is to allow the work product protection/consultative privilege to be restored, even if a testifying expert witness’ designation is withdrawn after his/her opinions have been disclosed.”).

In R.C. Olmstead, Inc. v. CU Interface, LLC, 657 F. Supp.2d 899 (N.D. Ohio 2009), the defendant in a lawsuit alleging misappropriation of trade secrets and copying of proprietary software identified a testifying expert who conducted a review of the software at issue. That expert then provided a written report of his findings. Later, deciding that it did not need to use the expert’s report or testimony in support of the parties’ pending summary judgment motions, the defendant de-designated the expert. When the plaintiff sought to depose him anyway, the defendant filed a motion to quash. After reviewing cases from throughout the U.S., the court held that “where a party identifies an expert as testifying under Rule 26(b)(4)(A), but subsequently redesignates the expert as non-testifying, the opposing party may only depose that expert upon a showing of ‘exceptional circumstances.’” Id. at 904.

The Northern District of Illinois has similarly applied Rule 26 to prohibit the taking of a deposition of a de-designated, non-testifying expert. In Ross v. Burlington Northern R.R. Co., 136 F.R.D. 638 (N.D. Ill. 1991), the plaintiff designated a certain expert as a testifying expert. Later, the plaintiff changed his mind and designated the same expert as a consulting-only expert. When the defendant sought to depose the expert, the plaintiff refused and the defendant filed a motion to compel. The court denied the motion, finding that the re-designation of the expert from a testifying expert to a consulting expert was entirely proper and precluded the expert’s deposition absent a showing of exceptional circumstances:

Although plaintiff may have originally designated the witness as a testifying expert, plaintiff has the prerogative of changing his mind. Since plaintiff changed his mind before any expert testimony was given in this case, the witness never actually acted as a testifying expert witness. The court cannot find, then, that the shift in designation affects the witness’s current status as a non-testifying expert witness and denies him the protection afforded such a witness.

Id. at 639.

In Callaway Golf Co. v. Dunlop Slazenger Group Americas, Inc., Civil Action No. 01-699, 2002 U.S. Dist. LEXIS 15429 (D. Del. Aug. 14, 2002), Callaway designated a Dr. Mehta as a testifying expert. About a week before his scheduled deposition, Callaway notified Dunlop that it was de-designating Dr. Mehta and that his deposition would not go forward. Callaway argued that, due to its de-designation, “Dr. Mehta was converted from a Rule 26(b)(4)(A) expert (an expert to be relied upon at trial) to a Rule 26(b)(4)(B) expert (an expert specially retained, but not expected to testify at trial) and as a result, no discovery may be obtained from him unless there exists exceptional circumstances.” Id. at *3. The court surveyed all of the reported cases dealing with the issue and held that “the conversion of an expert designated for trial purposes under Rule 26(b)(4)(A), to a consulting expert, under Rule 26(b)(4)(B) is allowed and results in insulating that expert from discovery, absent the showing of exceptional circumstances.” Id. at *11-12.

In the case of In re Shell Oil Refinery, 132 F.R.D. 437 (E.D. La. 1990), the plaintiff class brought suit after the catalytic cracking unit of the defendant’s oil refinery exploded. Shell hired several experts to inspect the plant and prepare expert reports. It produced the reports of two in-house employees as preliminary reports of experts it expected to call at trial but later decided not call the experts. When the plaintiffs attempted to depose these de-designated experts, the court applied the exceptional circumstances test and stated:

Even though Shell submitted the reports of Nordstrom and Nelson as preliminary reports of experts it expected to call at trial, Shell’s later decision not to call them at trial is permissible. Prior to the court imposed deadline for exchange of witness lists, a party is free to make strategic decisions changing an anticipated witness to a non-witness.

Id. at 440; see also Manship v. U.S., 240 F.R.D. 229, 237 (M.D. La. 2006) (applying exceptional circumstances test even though the experts “were designated as testifying experts for the majority of this litigation and were only recently de-designated as non-testifying experts at the ‘eleventh hour.’”).

Finally, the Eastern District of Washington has similarly held that de-designated experts may not be forced to give testimony absent a showing of exceptional circumstances. In the case of Lehan v. Ambassador Programs, Inc., 190 F.R.D. 670 (E.D. Wash. 2000), the plaintiff sued his former employer for age discrimination. The defendant hired an expert who conducted a mental exam of the plaintiff and prepared a written report of the exam. The defendant identified the expert as a testifying expert witness. Later, noting that emotional distress damages were not recoverable, the defendant de-designated its expert and stated it would not call him at trial. Nonetheless, the plaintiff sought to call the expert at trial, believing his testimony was relevant to the allegation that he had failed to mitigate his damages. The defendant objected. The court held that the plaintiff could not call the de-designated defense expert absent a showing of exceptional circumstances, noting that “the adoption of the ‘exceptional circumstances’ test preserves the fundamental principles governing litigation . . . .” Id. at 674.

Based on the case law set forth above, it is clear that the majority view among U.S. courts is that the de-designation of a testifying expert converts the expert to a non-testifying, consulting-only expert under Rule 24(b)(4)(B) who may be deposed only upon a showing of exceptional circumstances:

The issue before the Court is whether an expert initially designated as a testifying expert witness, but later designated as a non-testifying expert after disclosing his report, may be deposed by the opposing party. The cases addressing this precise issue follow two lines of authority. The overwhelming majority of courts hold that a party may re-designate an expert as non-testifying, and that this insulates the expert from deposition by other parties absent a showing of “exceptional circumstances” under Rule 26(b)(4)(B).

R.C. Olmstead, Inc. v. CU Interface, LLC, 657 F. Supp.2d 899, 902 (N.D. Ohio 2009) (emphasis added); see also Hansen Beverage Co., 2010 U.S. Dist. LEXIS 38653 at *6 (“[T]he majority approach in federal jurisprudence is to allow the work product protection/consultative privilege to be restored, even if a testifying expert witness’ designation is withdrawn after his/her opinions have been disclosed.”); Manship v. U.S., 240 F.R.D. 229, 236 (M.D. La. 2006) (“the weight of authority in cases involving re-designation of witnesses from testifying to non-testifying favor application of the Rule 26(b)(4)(B) ‘exceptional circumstances’ test.”); Green v. Nygaard, 143 P.3d 393, 397 (Ariz Ct. App. 2006)(“Restoring the work product protection of Rule 26(b)(4)(B) appears to be the majority position in these cases, even when the expert designation is withdrawn after his or her opinions have been disclosed.”). Under this majority rule, Defendants cannot take the depositions of Plaintiffs’ de-designated experts absent a showing of exceptional circumstances. Wy. Rule Civ. P. 26(b)(4).

B. Federal courts in the Tenth Circuit have specifically held that de-designated experts cannot be deposed absent a showing of exceptional circumstances.

Federal courts in the Tenth Circuit have likewise held that de-designated, non-testifying experts cannot be deposed absent exceptional circumstances. For example, in Archer v. Grynberg, No. 90-4166, 1991 U.S. App. LEXIS 30059 (10th Cir. Dec. 12, 1991), the defendant had retained a petroleum engineer named Smink to testify as an expert at trial. The plaintiff deposed the expert. Later, the defendant decided not to call Smink as a witness at trial and removed his name from its witness list. When the Plaintiffs sought to contact Smink and add him as an expert on their own witness list, the defendant filed a motion for protective order. The trial court granted the motion. On appeal, the Tenth Circuit affirmed, finding the trial court’s decision “was properly based on the ‘principle of fairness that underlies Rule 26(b)(4)(B).” Id. at *4.

Similarly, in the case of Durflinger v. Artiles, 727 F.2d 888 (10th Cir. 1984), the plaintiffs filed a wrongful death suit against several doctors. They originally named a Dr. Dyck as an expert witness who would testify at trial. Subsequently, Plaintiffs decided not to call him as a witness and informed the Defendants. Despite this de-designation, the Defendants contacted the expert and sought to use him as their own expert in the case. The court held that such conduct was improper and violated Federal Rule 26(b)(4)(B), which applies to consulting-only, non-testifying experts:

Dr. Dyck was certainly an “expert who has been retained or specially employed by another party in anticipation of litigation.” He prepared a report for plaintiffs after the case was filed. This was based on information furnished to him by plaintiffs. He was paid by plaintiffs for his services. In obtaining his report and assistance, defendants failed to make the necessary showing of special need to the court. . . .

In proceeding as they did, defendants circumvented the discovery process and subverted the principle of fairness that underlies Rule 26(b)(4)(B).

Id. at 891.

In Cooper v. Ciccarelli, No. 07-2434-GLR, 2009 U.S. Dist. LEXIS 85840 at *9 (D. Kan. Sept. 18, 2009), Ciccarelli, the defendant in a medical malpractice case, identified a Dr. Bailey as a testifying expert and produced his report. Dr. Bailey was critical of other medical professionals who had not been named as defendants. After the plaintiffs amended their complaint to bring in these other medical professionals as defendants, Ciccarelli de-designated Dr. Bailey as an expert and notified Plaintiffs that he would not testify at trial. When the Plaintiffs nonetheless noticed his deposition, Ciccarelli filed a motion to quash. Analyzing Rule 26, the court held that, “Subsection (B), not (A) applies . . . . [because] Defendant Cicarelli has withdrawn [Dr. Bailey] as an expert witness and has designated him instead only as a consulting expert.” Id. at *5. Applying that Rule, the court held as follows:

Rule 26(b)(4)(B) applies to the notice to depose Dr. Bailey. Defendant has withdrawn his designation as a witness. He is an “expert who has been retained . . . . in anticipation of litigation or to prepared for trial and who is not expected to be called as witness at trial.” Under subsection (B), Plaintiffs can depose Dr. Bailey only if they show “exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.”

Id. at *9.

Finally, in the case of Wolt v. Sherwood, 828 F.Supp.1562 (D. Utah 1993), the plaintiff in a propane explosion case settled with one of several defendants. As part of the terms of the settlement, the settling defendant agreed not to make its expert available to the other co-defendants. One of the remaining defendants asserted that such a provision violated public policy and should not be enforced. The court disagreed, citing Durflinger, and stating as follows:

The law encourages voluntary settlement of lawsuits. One factor which encourages settlement is the cost of obtaining expert witnesses. Frequently, plaintiffs will take less, and defendants will pay more, in order to avoid litigation expenses. Similarly, plaintiffs may settle for less from one defendant, if they believe other defendants will be placed at a disadvantage by virtue of the settlement and will, consequently, pay more in settlement in the future.

To preclude a plaintiff from buying the expertise of a settling defendant could discourage the settlement process, and frustrate the public policy in favor of settlement. Accordingly, the court finds that the settlement between Wolt and Petrolane could legitimately include an agreement that Petrolane would not share its cause and origin experts with counsel for Sherwood.

Id. at 1568. The weight of authority in the Tenth Circuit clearly supports Plaintiff’s position that Defendants must demonstrate exceptional circumstances in order to depose Plaintiff’s de-designated experts.

The only Tenth Circuit cases cited by Defendants in their Motion are Guinn v. CRST Van Expedited, Inc., No. CIV-09-1198-D, 2011 U.S. Dist. LEXIS 62359 (W.D. Okla. June 10, 2011) and Hill v. Kaiser-Francis Oil Co., Case No. CIV-09-07-R, 2012 U.S. Dist. LEXIS 20835 (W.D. Okla. Feb. 7, 2012). Both of these cases are from the Western District of Oklahoma and both are distinguishable from the facts of this case.

In Guinn, the issue was not whether a party could depose his adversary’s de-designated expert; in fact, in that case, unlike here, the expert had already been deposed prior to being de-designated. Id. at *3. Rather, the issue was whether the trial court should grant the plaintiff’s pre-trial objection to the defendants’ designation of deposition testimony it planned to offer at trial from the plaintiff’s recently de-designated expert. In denying the objections, the court noted that the defendant had relied upon the plaintiff’s designation of the expert in deciding not to designate an expert of his own:

Defendant in this case cannot retain an expert witness related to trucking industry matters without delaying the trial of this case. The deadline for designating expert witnesses expired prior to Plaintiff’s listing of Mr. Honeycutt in the two proposed pretrial reports in January and February. It was not until the May 2011 second amended pretrial report was submitted that Plaintiff elected to omit Mr. Honeycutt as a trial witness. In the interim, Defendant decided not to retain its own expert and to utilize the testimony of Mr. Honeycutt. Accordingly, this is not a situation in which Defendant could have retained its own expert after it learned Plaintiff would not call Mr. Honeycutt to testify at trial.

Id. at *10 (emphasis added). Here, by contrast, plaintiff’s experts were de-designated more than three and a half months before the current deadline for defendants to designate experts, which the parties have recently agreed to extend to July 2, 2012. See Exhibit E attached hereto.

And in Hill, the de-designated expert, Reineke, had extensive involvement in the prosecution of the case:

Mr. Reineke, of course, occupies a unique position, because of the posture of this class action litigation. Plaintiff has not merely identified Mr. Reineke as an expert, but he has presented testimony during certification proceedings, provided evidence in response to Defendant’s motions for summary judgment, and his opinions have been the basis, in part, for the opinions of at least one of Plaintiff’s other experts.

Id. at *4. “[U]nder the circumstances presented here,” the court stated, it declined to apply the exceptional circumstances test. Hill, 2012 U.S. Dist. LEXIS 20835 at *5. Of course, in the instant case, Plaintiffs’ de-designated experts have not testified, they have not presented evidence in support of any motions or responses and their opinions are not the basis of the opinions of experts who will testify at trial.

C. The majority position that de-designated experts may not be deposed absent exceptional circumstances is well-reasoned.

1. The majority position recognizes that an attorney who designates an expert as a testifying expert has the right to change their mind.

The majority position recognizes that an attorney who designates an expert as a testifying expert has the right to change their mind. As one court has stated:

Although plaintiff may have originally designated the witness as a testifying expert, plaintiff has the prerogative of changing his mind. Since plaintiff changed his mind before any expert testimony was given in this case, the witness never actually acted as a testifying expert witness. The court cannot find, then, that the shift in designation affects the witness’s current status as a non-testifying expert witness and denies him the protection afforded such a witness.

Ross v. Burlington Northern R.R. Co., 136 F.R.D. 638, 639 (N.D. Ill. 1991); In re Shell Oil Refinery, 132 F.R.D. 437, 440 (E.D. La. 1990) (“Even though Shell submitted the reports of Nordstrom and Nelson as preliminary reports of experts it expected to call at trial, Shell’s later decision not to call them at trial is permissible. Prior to the court imposed deadline for exchange of witness lists, a party is free to make strategic decisions changing an anticipated witness to a non-witness.”); Callaway Golf Co., 2002 U.S. Dist. LEXIS 15429 at *11-12 (“the conversion of an expert designated for trial purposes under Rule 26(b)(4)(A), to a consulting expert, under Rule 26(b)(4)(B) is allowed and results in insulating that expert from discovery, absent the showing of exceptional circumstances.”); R.C. Olmstead, Inc., 657 F. Supp.2d at 902 (“The overwhelming majority of courts hold that a party may re-designate an expert as non-testifying, and that this insulates the expert from deposition by other parties absent a showing of “exceptional circumstances” under Rule 26(b)(4)(B).’). Once a party exercises their right to change their mind and decides that it no longer wishes to call a designated expert at trial, that expert becomes an expert “who is not expected to be called as a witness at trial” and who may be deposed only “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.” Wy. Rule Civ. P. 26(b)(4) (emphasis added).

2. The majority position recognizes that the primary purpose for deposing an expert is to prepare for their cross-examination at trial and that such purpose is not served by deposing an expert who has been de-designated.

The majority position also recognizes that the primary purpose for deposing an expert is to prepare for their cross-examination at trial and that such purpose is not served by deposing an expert who has been de-designated and who is no longer expected to testify at trial:

Under Fed. R. Civ. P. 26(b)(4)(B), the facts known and opinions held by non-testifying experts who are retained or specially employed in anticipation of litigation or preparation for trial are subject to discovery only in exceptional circumstances. This Rule recognizes that with non-testifying experts, there is no need to obtain discovery for effective cross-examination.

In re Shell Oil Refinery, 132 F.R.D. at 440; 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.”); Cooper v. Ciccarelli, No. 07-2434-GLR, 2009 U.S. Dist. LEXIS 85840 at *21 (D. Kan. Sept. 18, 2009) (“courts have recognized that the primary purpose of Rule 26(b)(4)(A) is to allow a party to prepare for cross-examination of the expert witnesses to be called at trial by the opposing party.”); R.C. Olmstead, Inc., 657 F. Supp.2d at 904 (“where an expert is non-testifying, there is no need to prepare for cross-examination of that expert. Thus, permitting the deposition of a non-testifying expert witness only can result in enabling a party to build his case on the back of the opposing party’s retaining and financing an expert.”). Where, as here, the experts at issue are not going to be called to testify, there simply is no need to prepare for cross-examination by taking a pre-trial deposition of the witness. See. e.g., Advisory Committee Notes to Fed. R. Civ. P. 26(b)(4)(A) (“discovery is limited to trial witnesses”).

3. The majority position recognizes that a party should not be able to “freeload” by essentially converting their adversary’s de-designated experts into their own testifying experts.

The majority position also recognizes that a party should not be able to “freeload” by essentially converting their adversary’s de-designated experts into their own testifying experts. As one court has stated:

permitting the deposition of a non-testifying expert witness only can result in enabling a party to build his case on the back of the opposing party’s retaining and financing an expert. This strikes at the heart of the fairness doctrine inherent in Rule 26(b)(4) and is precisely the reason why most courts demand that a party seeking to depose non-testifying experts show exceptional circumstances.

R.C. Olmstead, Inc., 657 F. Supp.2d at 904; Ager v. Jane C. Stormont Hosp. & Training School for Nurses, 622 F.2d 496, 502 (10th Cir. 1980) (“The advisory committee notes indicate that the structure of 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 re Pizza Time Theatre Sec. Litig., 113 F.R.D. 94, 96 (N.D. Cal. 1986) (“As the Advisory Committee’s Note accompanying the 1970 amendments make clear, the drafters of that subparagraph wanted it to reinforce each litigant’s motivation to aggressively develop his own side of any given case by retaining and relying on his own expert. The flip side of that objective was to discourage lazy or unscrupulous lawyers from trying to cut case-preparation corners by leaching basic information or valuable opinions from experts retained by their opponents.”); Rubel v. Eli Lily & Co., 160 F.R.D. 458, 460 (S.D.N.Y. 1995) (“The Federal Rules of Civil Procedure reflect a view that it would be unfair to allow a party to benefit from the effort and expense incurred by the other in preparing its case. In other words, the general policy, which is not without exceptions, is that each side should prepare its own case at its own expense.”); FMC Corp. v. Vendo Co., 196 F. Supp.2d 1023, 1048 (E.D. Cal. April 17, 2002) (“there is a strong policy against permitting a non-diligent party from free-riding off the opponent’s industry and diligence.”); 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.”). If Defendants are allowed to co-opt Plaintiffs’ de-designated experts for their own use, these important principles would be violated and Defendants would essentially be able to obtain free of cost the fruits of Plaintiffs’ labor.

D. The cases cited by Defendants are distinguishable.

As set forth above, the majority view among U.S. courts is that the de-designation of a testifying expert converts the expert to a non-testifying, consulting-only expert under Rule 24(b)(4)(B) who may only be deposed upon a showing of exceptional circumstances. The few contrary cases cited by Defendants are easily distinguishable.

For example, in House v. Combined Ins. Co. of America, 168 F.R.D. 236 (N.D. Iowa 1996), the court held that a defense expert who had conducted a Rule 35 physical examination of the plaintiff could be deposed even though he was subsequently de-designated. The court framed the issue as: what is the proper standard for access to a de-designated expert “where both a Rule 26(b)(4)(A) designation has occurred, albeit a designation subsequently withdrawn, and a Rule 35 medical examination has occurred?” Id. at 246. In holding that the expert could be deposed, the court noted that “the factor of a Rule 35 examination of the opposing party weighs particularly heavily in favor of the examined party’s interests in all facts relevant to the examined party’s claims coming to light.” Id. House has been distinguished by numerous other courts because, unlike here, it specifically involved an expert who had conducted a physical examination of the plaintiff. See, e.g., Manship, 240 F.R.D. at 233-234 (“in House, the court was inquiring about the correct application of Rule 26(b)(4) when a Rule 35 medical examination ha[d] occurred and noted the ‘kind of reliance’ created by ‘submission to a medical examination by the designated expert.’ By contrast, the present case does not involve a Rule 35 medical examination, and the Court therefore finds that House is distinguishable.”); FMC Corp., 196 F. Supp.2d at 1046 (applying exceptional circumstances test to a request to depose de-designated experts and stating that “[u]nlike House, the experts here have not performed a personal medical examination pursuant to Rule 35”). Because this case does not involve a Rule 35 physical examination, House is simply inapplicable.

As set forth above, the two Tenth Circuit cases cited by Defendants are similarly inapplicable. In Guinn v. CRST Van Expedited, Inc., No. CIV-09-1198-D, 2011 U.S. Dist. LEXIS 62359 (W.D. Okla. June 10, 2011), the expert had already been deposed prior to being de-designated and the late de-designation of the expert effectively precluded the other party from designating its own experts. Id. at *3, *10. In Hill v. Kaiser-Francis Oil Co., Case No. CIV-09-07-R, 2012 U.S. Dist. LEXIS (W.D. Okla. Feb. 7, 2012), unlike here, the de-designated expert had testified during pre-trial proceedings, had submitted evidence in response to a motion for summary judgment and had provided his opinions to testifying experts who relied upon them. Id. at *4.

The case of Fitzgerald v. Stanley Roberts, Inc., 895 A.2d 405 (N.J. 2006) is also distinguishable. First, that case did not involve the issue of whether a party could depose a de-designated expert. Rather, the issue was whether a plaintiff’s expert who had already been deposed could be called to testify live at trial by the defendant if the plaintiff chose not to call the witness. Moreover, the court’s holding was simply that the defendant should have been permitted to call the expert at trial if the expert agreed. Id. at 414 (“access to the testifying witness is allowed and the adversary may produce a willing expert at trial.”), 412 (“The record does not reflect whether Dr. Nadel agreed to testify for defendants. If Dr. Nadel had been unwilling to do so, defendants could not have compelled his testimony.”). Here, Plaintiffs’ de-designated experts have not been deposed, do not wish to act as experts for Defendants and are not willing to voluntarily appear for deposition or for trial.

The case of Penn Nat’l Ins. Co. v. HNI Corp., 245 F.R.D. 190 (M.D. Pa. 2007) similarly did not involve a motion to compel expert depositions. In that case, the insurance company plaintiffs in a construction defect case arising from a model home fire had identified certain experts. The defendants cross-claimed against one another. Before trial, one defendant filed a motion in limine seeking to bar its co-defendant from calling the plaintiffs’ experts at trial if the plaintiffs did not call them. The court denied the motion, noting that the defendant (unlike Defendants here) had listed the plaintiff’s experts in its expert designations and witness lists. Id. at 194. The court also noted that “because [the plaintiffs’] claims will essentially be resolved by bench trial prior to any of these experts testifying at the trial on [the defendants’] claims, the insurers will face little disadvantage from such testimony.” Id. at 194. Here, of course, Defendants wish to use the testimony of Plaintiffs’ de-designated experts against Plaintiffs themselves. Penn is clearly inapplicable under the facts here.

The New York cases of Agron v. Trustees of Columbia Univ., 176 F.R.D. 445 (S.D.N.Y. 1997) and Gilly v. City of New York, 508 N.E.2d 901 (N.Y. App. 1987) are similarly distinguishable. In Agron, the court rejected the applicability of Rule 26 because the issue was the admissibility of trial testimony of a de-designated expert rather than the deposition of such an expert as is the issue here:

The Court finds Rule 26(b)(4)(B) inapplicable to Plaintiff’s motion. First, the Rule governs limitations on discovery. The instant dispute, however, does not concern discovery matters, but rather the trial testimony of Deutsch. ‘The rule does not address itself to the admissibility at trial of the testimony of such an expert which is elicited by the opponent.’

Id. at 449. Gilly similarly involved the issue of whether a de-designated expert could be compelled to give trial testimony as opposed to whether they could be forced to give a deposition. Gilly, 508 N.E.2d at 902. Additionally, in that case, like House, the expert had conducted a physical examination of the plaintiff. Id. at 902.

Finally, in White v. Vanderbilt Univ., 21 S.W.3d 215 (Tenn. App. 1999), the defense expert at issue was deposed twice, once at the insistence of the defendants. Id. at 221. Following these two depositions, during which he gave testimony favorable to the plaintiffs, the plaintiffs listed him as a trial witness. Id. at 222. The next day, the defendants likewise identified the expert as a witness who “may be called to testify.” Id. After making a series of ever-changing limine rulings, the trial court finally decided, during trial, that the plaintiffs could not use the defense expert’s deposition testimony if the defendants elected not to call him at trial. Id. Based on these unique facts, the court of appeals held that the trial court had erred and that Rule 26, dealing solely with discovery, was inapplicable:

Not only did they designate him as a testifying expert, they voluntarily made him available for two depositions – one of the depositions to preserve his testimony because of his legal unavailability. In addition, the lawyers representing the defendants participated in these depositions without objection. Instead of attempting to redesignate Dr. Kostuik as a consulting expert following his depositions, the defendants repeatedly reinforced Dr. Kostuik’s status as a testifying expert by including him on their list of potential trial witnesses and alluding to his expected appearance in court to testify in person.

Based on these facts, we find that Tenn. R. Civ. P. 26.02(4)(B) is inapplicable to the defendants’ motion in limine for two reasons. First, Tenn. R. Civ. P. 26.02(4)(B) governs limitations on discovery, not on the admissibility of properly discovered evidence.

Id. at 225. The handful of cases cited by Defendants in their motion represent the minority view and are easily distinguishable from the facts of the instant case.

E. The law review article cited by Defendants does not change the result here.

Defendants cite, and rely heavily on, a law review article from the Southern Methodist Law School Law Review as support for their position. See Motion at 12-14. As that article makes clear, however, the majority position among U.S. courts is that a party may not depose or offer trial testimony from their adversary’s de-designated expert. Easton, “Red Rover, Red Rover, Send that Expert Right Over,” 55 S.M.U. Law. Rev. 1427, 1430 (2002) (“most reported decisions constrain the parties who would present such testimony, by either prohibiting such testimony entirely or excluding evidence of the relationship between the party and the expert who initially hired her.”). While the author offers his opinion that these decisions were wrongly decided, a law professor’s opinion on what the law should be — regardless of how esteemed the professor might be — is just one man’s opinion. It carries absolutely no weight in the face of the contradictory Tenth Circuit opinions cited above and the majority position as articulated by courts throughout the U.S. that de-designated experts may not be deposed absent exceptional circumstances.

Even if the SMU law review article were somehow authoritative, its analysis is hardly convincing. According to the Wyoming (and Federal) Rules, the issue is really quite simple: if an expert is going to be used as a testifying expert at trial, they may be deposed by the opposing party, whereas if an expert is not going to be used as a testifying expert at trial, they may not be deposed by the opposing party unless exceptional circumstances are shown:

A party may depose any person who has been identified as an expert whose opinions may be presented at trial. If a report from the expert is required under subdivision (a)(2)(B), the deposition shall not be conducted until after the report is provided.

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.

Wy. Rule Civ. P. 26(b)(4) (emphasis added). Here, prior to the depositions of the witnesses at issue, Plaintiffs’ counsel notified defense counsel that the experts were not going to give testimony at trial. Thus, according to the clear language of Rule 26(b)(4), Defendants are not permitted to depose these experts – who are “not expected to be called as a witness at trial” – absent a showing of exceptional circumstances.

The SMU law review article contends that “de-designation is a futile gesture” because “Rule 26(a)(2)(A) provides for an irretrievable disclosure of experts who might testify at trial.” Easton, “Red Rover, Red Rover, Send that Expert Right Over,” 55 S.M.U. Law. Rev. 1427, 1461, 1466 (2002). This statement is correct only if a party is prohibited from changing their mind after they have initially identified an expert as one whose testimony may be offered at trial. The Rules, however, contain no language supporting any such prohibition, nor does the SMU law review article point to any such language. Moreover, any such argument is contradicted by the statement in the law review article that “an attorney who initially discloses the expert is not precluded from by that disclosure from deciding not to use that expert at trial . . . .” Easton, “Red Rover, Red Rover, Send that Expert Right Over,” 55 S.M.U. Law. Rev. 1427, 1466 (2002).

Federal courts interpreting Rule 26 have explicitly held that attorneys are permitted to change their mind, thereby converting a testifying expert who may be deposed into a consulting expert who may not be deposed absent a showing of exceptional circumstances:

Although plaintiff may have originally designated the witness as a testifying expert, plaintiff has the prerogative of changing his mind. Since plaintiff changed his mind before any expert testimony was given in this case, the witness never actually acted as a testifying expert witness. The court cannot find, then, that the shift in designation affects the witness’s current status as a non-testifying expert witness and denies him the protection afforded such a witness.

Ross v. Burlington Northern R.R. Co., 136 F.R.D. 638, 639 (N.D. Ill. 1991); In re Shell Oil Refinery, 132 F.R.D. 437, 440 (E.D. La. 1990) (“Even though Shell submitted the reports of Nordstrom and Nelson as preliminary reports of experts it expected to call at trial, Shell’s later decision not to call them at trial is permissible. Prior to the court imposed deadline for exchange of witness lists, a party is free to make strategic decisions changing an anticipated witness to a non-witness.”). The SMU law review article completely disregards this important right.

The SMU law review article is also flawed because it ignores the fundamental reason why a testifying expert may be deposed and a consulting expert may not. The reason is not because consulting experts do not have information that may be relevant to a “search for the truth.” The reason is that cross-examination through a deposition is meant to allow a party to prepare for, and potentially rebut, testimony that is to be offered against them at trial:

Under Fed. R. Civ. P. 26(b)(4)(B), the facts known and opinions held by non-testifying experts who are retained or specially employed in anticipation of litigation or preparation for trial are subject to discovery only in exceptional circumstances. This Rule recognizes that with non-testifying experts, there is no need to obtain discovery for effective cross-examination.

In re Shell Oil Refinery, 132 F.R.D. at 440; 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.”); Cooper v. Ciccarelli, No. 07-2434-GLR, 2009 U.S. Dist. LEXIS 85840 at *21 (D. Kan. Sept. 18, 2009) (“courts have recognized that the primary purpose of Rule 26(b)(4)(A) is to allow a party to prepare for cross-examination of the expert witnesses to be called at trial by the opposing party.”); R.C. Olmstead, Inc. v. CU Interface, LLC, 657 F. Supp.2d 899, 904 (N.D. Ohio 2009) (“where an expert is non-testifying, there is no need to prepare for cross-examination of that expert. Thus, permitting the deposition of a non-testifying expert witness only can result in enabling a party to build his case on the back of the opposing party’s retaining and financing an expert. This strikes at the heart of the fairness doctrine inherent in Rule 26(b)(4) and is precisely the reason why most courts demand that a party seeking to depose non-testifying experts show exceptional circumstances.”). Where, as here, the experts at issue are not going to be called, there simply is no need to prepare for cross-examination at trial by taking a pre-trial deposition of the witness. See. e.g., Advisory Committee Notes to Fed. R. Civ. P. 26(b)(4)(A) (“discovery is limited to trial witnesses”).

II. Defendants cannot show the existence of the “exceptional circumstances” necessary to allow them to depose their adversary’s de-designated experts.

Defendants cannot show, and have not even attempted to show, the existence of the “exceptional circumstances” necessary to allow them to depose their adversary’s de-designated experts. As many courts have held, “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., 196 F. Supp.2d at 1046 (“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 :

  • a. The object or condition at issue is destroyed or has deteriorated after the non-testifying expert observes it but before the moving party’s expert has an opportunity to observe it; or
  • b. There are no other available experts in the same filed or subject area

Spearman Inds., 128 F. Supp.2d at 1152.

“The rule has been construed to require as an exceptional circumstance a basic lack of ability to discover the equivalent information on the part of the party moving for discovery.” Eliasen v. Hamilton, 111 F.R.D. 396, 401 (N.D. Ill. 1986); R.C. Olmstead, Inc. v. CU Interface, LLC, 657 F. Supp.2d 899, 904 (N.D. Ohio 2009) (“The opposing party can show exceptional circumstances where ‘it is impracticable for the party to obtain facts or opinions on the same subject by other means.’ Fed. R. Civ. P. 26(b)(4)(B)(ii). Examples of this would include evidence deteriorating after a party’s non-testifying expert observes it but before the opposing party has an opportunity to observe it, or if there are no other available experts in the same field or subject area.”).

Defendants have not even attempted to make such a showing, nor could they. There are numerous expert witnesses available who could testify regarding the adequacy of the Patch Defendants’ warnings, the Patch Defendants’ compliance with FDA regulations and the safety of the Patch Defendants’ product. Likewise, there are numerous experts who can testify that the fentanyl patch gave Deputy Johnson a level of fentanyl higher than expected; in fact, one of Plaintiffs’ testifying experts has already testified to this fact.

Where, as here, other experts are available to testify to the same subject matter as the de-designated expert, no exceptional circumstances exist and their deposition is forbidden. See, e.g., Hansen Beverage Co. 2010 U.S. Dist. LEXIS 38653 at *6 (finding no exceptional circumstances where de-designated expert was “not the only expert available in her filed 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 nonwitness consultant therefore cannot be allowed.”); In re Shell Oil Refinery, 132 F.R.D. at 440 (finding no exceptional circumstances where party seeking to depose de-designated experts could obtain the same information by having their own experts conduct tests); Bailey v. Meister Brau, 57 F.R.D. 11, 14 (N.D. Ill. 1972) (“The Rule clearly contemplates a showing that a party has found opinions by others on the subject to be unavailable before he may obtain discovery from his opponent’s retained expert who is not expected to be called to testify on the same subject. Defendants have made no attempt to show that they are without sufficient funds or information to obtain other opinions as to the value of the Black Company. Accordingly, the motion for leave to take Lorie’s deposition will be denied.”). Because Defendants have not shown, and cannot show, the existence of “exceptional circumstances,” their Motion should be denied.

CONCLUSION

For all of the reasons set forth above, Defendants’ Motion to Compel the depositions of Plaintiffs’ non-testifying experts should be denied.

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

 

Attorneys for Plaintiff Kelliann Johnson,

Co-Personal Representative of

Larry Michael Johnson, deceased