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.
Courts have recognized four interests weighing against allowing an opposing party to depose or call at trial a consultative, non-testifying expert witness: (1) an important interest in allowing counsel to obtain the expert advice they need in order properly to evaluate and present their clients position without fear that every consultation with an expert may yield grist for the adversary's mill, which the court found underlies Fed.R.Civ.P. 26(b)(4)(B)'s limitation on discovery of consultative, as opposed to testifying experts; (2) unfairness of allowing an opposing party to benefit from a party's effort and expense incurred in preparing its case; (3) fear of restraint on the willingness of experts to serve as consultants if their testimony could be compelled; and (4) the substantial risk of explosive prejudice stemming from the fact of the prior retention of any expert by the opposing party.View Full Point of Law
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).