In Re Shell Oil Refinery

Brief Fact Summary.

During pretrial discovery, the Plaintiff moved for discovery of the Defendant’s experts.

Synopsis of Rule of Law.

The facts known and opinions held by non-testifying experts,
who are retained in anticipation of litigation are subject to discovery only in exceptional
circumstances.

Facts.

The Catalytic Cracking Unit (CCU) at the Shell Oil Refinery (Defendant)
exploded. The first of several suits were certified as a class action. The day after the
explosion, the parties entered an agreement giving Plaintiff’s legal committee (PLC) and
its experts access to the CCU to inspect, measure and photograph. Following the
agreement, Defendant preserved all materials tagged by PLC. During the course of the
litigation, Plaintiffs field several motions seeking expert discovery, specifically the
identities of Defendant’s experts and results of tests conducted by Defendant. The district
court held that the Plaintiff cannot have the information unless the expert is going to
testify.

Issue.

Whether a party may acquire facts and opinions held by non-testifying experts
who are retained in anticipation of litigation?

Held.

No. Plaintiff’s request for discovery is denied.

Plaintiffs’ attempt to obtain discovery from experts expected to be called at
trial was premature. Typically, those who will testify cannot be identified
until the later stages of litigation.
Facts and opinions of non-testifying experts in preparation of trial are only
discoverable in exceptional circumstances. Plaintiff contends that two of
the non-testifying experts should be treated as ordinary witnesses because
they are in-house experts who would have performed the tests as part of
their regular duties. In the alternative, Plaintiff argues that if the two
experts were retained specially in anticipation of litigation, then facts and
opinions are discoverable due to exceptional circumstances, which require
great expense to duplicate the tests. The two experts performed their
investigation and their study of the explosion was in anticipation of
litigation. The determination whether an in-house expert falls within the
parameters of the retained must be on a case-by-case basis. In this case,
the court finds that the experts were retained by Defendant in anticipation
of trial. Defendant’s attorneys specifically engaged the experts to assist
them in defending the lawsuit. The two experts investigated and studied
the cause of the explosion and prepared preliminary reports. Their usual
duties do not include litigation assistance. Since the experts were retained

or specially employed in anticipation of trial, the court must look at
whether exceptional circumstances exist to permit discovery. The
Plaintiffs want Defendant’s test results to avoid expense of conducting
their own tests. Plaintiffs have failed to show exceptional circumstances,
thus Plaintiffs request for discovery is denied.

Discussion.

Non-testifying experts are obtained by counsel when the lawyer needs the
assistance of an expert in the preparation of trial. In other words, counsel is hiring
someone to assist them in the development of the legal and factual theories for the case.
Here, Plaintiff failed to show exceptional circumstances, which would permit the
discovery of Defendant’s experts.