Brief Fact Summary.
Combined Ins. Co. of America identified Dr. Taylor as an expert witness and removed Taylor from it’s witness list when House sought to compel production of Dr. Taylor’s examination report.
Synopsis of Rule of Law.
If a party withdraws the identification of an expert likely to testify at trial, the opposing party can depose the witness without showing exceptional circumstances.
House sued Combined Ins. Co. of America (Combined) alleging her supervisor Olarundami sexually harassed her. Combined identified Dr. Taylor as an expert witness to testify. When House sought to compel production of Dr. Taylor’s examination report, Combined claimed that they would not have Taylor testify and sought to bar discovery as it related to Taylor.
If a party withdraws the identification of an expert likely to testify at trial, can the opposing party depose the witness without showing exceptional circumstances?
Yes. The motion for limine is partially granted to prevent discovery of how Taylor was hired, but the motion is otherwise denied. The prejudice to Combine can be prevented by forbidding the parties from revealing how Taylor was obtained as a witness. House maintains a strong interest in presenting evidence of Taylor’s examination.
Once a party identifies an expert who is likely to testify, the need to show exceptional circumstances for the opposing party to depose the witness is no longer needed under FRCP 26(b)(4)(B).