Re-Designating Expert Witnesses
As it sometimes happens in litigation, for effective representation attorneys may need to change their legal strategy and re-designate an expert witness from testifying to non-testifying, consultant. For example, counsel learning of damaging discovery of its own designated testifying witness will want to re-designate the expert to prevent him or her from being deposed. What does this mean in terms of discovery for opposing counsel?
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.
Background: Damaging information came up after the defendant’s medical expert (whose deposition had been scheduled) performed an independent medical examination (IME) of the plaintiff and during the examination the plaintiff had a medical emergency and the expert had to prescribe immediate treatment.
As a result, the defendants would not be producing the expert for a deposition and re-designated the expert as a consultant. The plaintiff’s attorney filed a motion to compel the deposition of the defendants’ expert and a motion for sanctions.
The Magistrate Judge sided with defendants.
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.”
However, Federal Rule of Civil Procedure 26(b)(4) makes a clear distinction between allowable discovery with respect to testifying verses non-testifying, consulting experts. “Exceptional Circumstances” would be the only reason for a party to acquire opinions of an expert retained solely as a consulting expert.
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).”
The re-designation of an expert-witness and the consequences are still in debate, as it is up to the parties and district courts to decide how to handle the situation.
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