To Testify or Not to Testify: Re-Designating An Expert Witness?
Expert witnesses play a big role in most - if not all - of the court cases that get reported here.
ExpertServices is a law firm specializing in expert witnesses. Every month or so they send me an article about
specific court cases that could be of interest to RF Cafe visitors. This particular installment is titled, "To
Testify or Not to Testify: Re-Designating An Expert Witness?," and deals with a rather ironic turn of events
in a medical case, but the outcome could affect even patent and copyright infringement cases, particularly given
the reported low incidence of precedence in these matters. - Kirt B.
Reprinted with permission.
Testify or Not to Testify: Re-Designating An Expert Witness?
Maggie Tamburro on
A somewhat touchy expert witness question recently surfaced in the U.S. District Court of the
Eastern District of Louisiana. After designating an expert witness as a testifying expert, a party decided to
shift gears during discovery, suddenly re-designating its expert as non-testifying, consulting.
What are the resulting discovery implications for the opposing party? Can the re-designated expert still be
The district court’s ruling underscores a murky area of expert witness procedure on which the federal rules
fall suspiciously short and some district courts have differed.
The Re-Designation of an Expert
Decena v. Am. Int’l Cos. , 2012 U.S. Dist. LEXIS 61303 (E.D. La. May 1, 2012), involved rather run-of the-mill
allegations of bad faith and improper denial of insurance benefits. But the expert-related discovery issue, which
landed it in the lap of a U.S. District Court Judge, erupted following re-designation of the defendants’
The issue arose when defendants requested that the plaintiff submit to an independent medical examination
(IME) performed by defendants’ designated testifying expert. Plaintiff agreed to the request. During the IME the
ironic happened – plaintiff experienced a medical emergency, requiring the defendant’s expert to prescribe
Next – you probably guessed it. In an about-face move, defendants’ counsel announced that the expert, whose
deposition had already been scheduled, would no longer be retained as a testifying expert, but would instead be
retained solely as a non-testifying, consulting expert. As a result, the defendants would not be producing the
expert for her deposition (nor be providing an expert report).
Almost immediately plaintiff filed a motion
to compel the deposition of defendants’ expert and a motion for sanctions.
The District Court’s
In his ruling on the plaintiff’s motion, the Magistrate Judge sided with defendants,
refusing to allow plaintiff’s unrestricted deposition of defendants’ expert. In permitting only limited
questioning as to what defendants’ expert observed during the IME, the Magistrate Judge stated, "Because
[defendants’ expert] will not be testifying as an expert for the defendants, there is no reason to go into any
report she may have previously issued for that purpose. Nor shall she be questioned on issues of causation."
On review, the District Court Judge denied plaintiff’s motion seeking to overturn the Magistrate Judge’s order.
A Brief Look at Federal Rule of Civil Procedure 26
As many readers know,
Federal Rule of Civil Procedure 26(b)(4)
specifically deals with trial preparation involving experts, making a clear distinction between allowable
discovery with respect to testifying verses non-testifying, consulting experts.
Absent a showing of
"exceptional circumstances," a party may not discover facts or opinions of an expert retained solely as a
consulting expert who is not expected to testify as a witness at trial.
However, when it comes to the issue
of the re-designation of an expert, the rule is arguably less clear, leaving the parties and district courts
largely to themselves in deciding how to treat the issue.
district court’s ruling in Decena recognized a lack of uniformity on the issue, stating, "[T]here is no consensus
of authority as to whether an expert initially designated as a testifying expert witness, but later designated as
a non-testifying expert before the disclosure of her expert report, may nonetheless be deposed as a testifying
expert under Fed. R. Civ. P. 26(b)(4)(A)."
There does, however, seem to be a recognized majority view and
minority view, which the Decena court pointed out.
The Majority View
of courts considering the issue have concluded that, absent "exceptional circumstances" as required under FRCP
26(b)(4), a party is not entitled to depose a non-testifying expert, even when that expert had been initially
designated as a testifying expert, but later re-designated as a consulting-only expert.
Those courts have concluded that the purpose of FRCP(b)(4)(A), which allows for deposition of a testifying expert,
is to ensure a party’s ability to prepare for cross-examination of the expert at trial. The Decena district court
noted (quoting the 1970 Advisory Committee Notes to FRCP 26), "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
The Minority View
Meanwhile, the minority view, (discussed at
length in the case of
Olmstead, Inc. v. CU Interface, LLC, 657 F. Supp. 2d 899, 903 (N.D. Ohio Mar. 5, 2009)), found a distinction
between a witness who was re-designated as a non-testifying witness and one that was never designated as
testifying in the first place.
Citing House v. Combined Ins. Co. of Am., 168 F.R.D. 236 (N.D. Iowa 1996),
the Olmstead case recognized that a minority approach advocated that a re-designated witness, rather than being
subjected to the "exceptional circumstances" test under FRCP 26, should be governed instead by a balancing test
similar to the one contained in
Federal Rule of Evidence 403.
The Olmstead case ultimately rejected House and followed the majority view – refusing to allow the deposition of
the re-designated expert. However, the decision did recognize there were facts under which an opposing party could
depose a non-testifying expert, and provided examples of the kinds of exceptional circumstances which might
justify the deposition of a re-designated expert witness.
All is Fair in Love and War
Which begs the question: What happens when one party learns during discovery that its own designated testifying
expert has acquired information which could be highly damaging?
Or, conversely, what happens when one party
simply has a change of heart regarding its legal strategy midstream in the discovery process and determines the
best course of representation requires the re-designation of a testifying expert? After all, attorneys have an
ethical obligation to vigorously develop the position of their clients and are specifically entitled to work
product protections with respect to draft reports and certain attorney-expert communications.
answer seems to be (as is true with most legal dilemmas), "It depends." But certainly knowing the arguments on
both sides of this recurring expert-related issue, as well as the recent district court ruling in Decena, can help
determine your strategy the next time you encounter such an issue.
Maggie Tamburro – who has written
18 posts on
Maggie Tamburro is an
attorney and writer who holds a Juris Doctor from The John Marshall Law School and a Bachelor of Arts from the
University of Texas. Maggie holds the position of Senior Copywriter at IMS ExpertServices. She was admitted to the
Illinois Bar in 1994 and Florida Bar in 1999 and has significant experience in legal research, editing, and
writing. From drafting complex commercial transactional documents to journalistic reporting, Maggie brings a
unique blend of background, experience, and perspective to IMS in both the area of law and writing. Maggie is
active her in local community, holding various publicly appointed civic board positions.
article was originally published in
BullsEye, a newsletter
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