To Testify or Not to Testify: Re-Designating An Expert Witness

By Maggie Tamburro
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 deposed?

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 De-Designation Re-Designation of an Expert Witness

The case, 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’ testifying expert.

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 immediate treatment.

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 Ruling

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.

The Courts

Even the 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

The majority 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 opponents expert.”

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.

The correct 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

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. She was admitted to the Illinois Bar in 1994 and Florida Bar in 1999 and has significant experience in legal research, editing, and writing. Maggie is active her in local community, holding various publicly appointed civic board positions.

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