Brief Fact Summary.
Plaintiff’s estate attempts to gain access to Defendant’s experts’ opinions having to do with the deceased cells.
Synopsis of Rule of Law.
When a party sends a tissue sample to any expert for review, then any other party may discover the result of that review, including obtaining any written report, diagnosis, or test result, or may take the deposition of such expert upon payment of his time and expenses when deposed and if he is not to be called as a witness at trial, also upon payment of his fee and expenses in connection with the preparation of his report.
However, at least one district court in this state has found a pathologist's or other expert's examination of tissue samples taken from the body of a person who is now deceased to be sufficiently analogous to an examination under Rule 35(b) so that all parties have a right to the type of information set forth in that rule.View Full Point of Law
Plaintiff Coates allegedly died from peritoneal mesothelioma. After he died, Plaintiff Coates and Defendant AC & S, Inc. sent cells from Coates’s body to their respective experts. Defendant sent the samples to several experts who were designated under FRCP 26(b)(4)(B) as experts retained in anticipation of litigation, but who were not to testify during trial. Plaintiff Coates filed a motion requesting to either depose Defendant’s witnesses or to obtain copies of their reports
When a party sends a tissue sample to an expert for review, may any other party discover the results of that review?
Yes, when a party sends a tissue sample to an expert for review, then any party may discover the results of that review. Plaintiff Coates may obtain Defendant AC&S’s expert opinions, either through deposing the witnesses or obtaining copies of their reports.
1. Under FRCP 26(B)(4)(B) a party may normally not discover opinions held by experts who have been retained by another party in anticipation of litigation but who will not testify at trial.
2. There is an exception to the rule that allows the information to be discoverable if there are exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.
3. This case clearly falls under the exception.
4. It is impracticable to take more samples from Coates’s body and have it tested.
5. This finding of impracticability also prevents parties from shopping for favorable expert opinions and hiding unfavorable ones.
6. Plaintiff Coates may obtain Defendant AC&S’s expert opinions, either through deposing the witnesses or obtaining copies of their reports.