Deposing or Otherwise Utilizing Withdrawn Experts

You are litigating a case, you opponent discloses her experts and then, weeks later, withdraws one or more of them. As a sly advocate, you assume the reason for the withdrawal must be favorable to your client and you immediately notice the withdrawn expert’s deposition. Your notice will likely draw an objection and motion for protective order.

I had this scenario arise in A-11-651211-C. My clients disclosed a medical expert. Of the four plaintiffs involved, the treatment for two was appropriate, portions of the treatment for the other two was not. When these latter two plaintiffs resolved, we withdrew the medical expert. Plaintiffs never joined in the designation. The remaining plaintiffs then sought to depose the withdrawn medical expert and drew a motion for protective order.

The motion was governed by NRCP 26(b)(4)(B).

A party may, through interrogatories or by deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 35(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.

Id. Had an IME been performed, the result might have been different as NRCP 35(b)might have been triggered. Plaintiffs had designated their own medical experts, so I argued they could not demonstrate “exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.” NRCP 26(b)(4)(B).

With no case law from the Supreme Court of Nevada on point, we looked elsewhere. This exact issue arose in General Motors Corp. v. Jackson, 636 So. 2d 310 (Miss. 1994) which concerned plaintiffs’ claim that the rear-axle of their vehicle broke while they were driving, causing an accident. GM opposed, arguing the rear-axle fractured due to the forces of the accident. Plaintiffs initially disclosed an engineering expert who supported their theory but later withdrew this designation when additional evidence caused this expert to agree with GM. Id. at 313. After this occurred, the dealership who sold the vehicle noticed the engineer’s deposition. The deposition was permitted to proceed, after which the car dealer then designated the engineer as its own expert. Id. The district court later reversed its own order and barred the car dealer from utilizing the engineer’s testimony. GM & the car dealer appealed.

The Supreme Court of Mississippi applied MRCP 26(b)(4)(B), which was substantively identical to NRCP 26(b)(4)(B).

A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial only upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.

MRCP 26(b)(4)(B). “Rule 26(b)(4)(B) clearly limits the extent to which a party may discover the opinions or facts known by an expert retained by an adverse party but not expected to be called as a witness at trial.” General Motors Corp., 636 So. 2d at 314.

The court adopted federal decisions of the substantively similar FRCP 26(b)(4)(B), holding “the party ‘seeking disclosure under Rule 26(b)(4)(B) carries a heavy burden’ in demonstrating the existence of exceptional circumstances.” Id., quoting Ager v. Jane C. Stormont Hosp. and Training Sch. for Nurses, 622 F.2d 496, 503 (10th Cir. 1980); citing Hoover v. United States Department of Interior, 611 F.2d 1132, 1142 n. 13 (5th Cir. 1980). Based upon the facts before it, the Mississippi court determined no exceptional circumstances were present upon which GM and the car dealer should have been permitted to utilize the testimony of the engineer.

The Court also went further, noting “[t]he rules of discovery do not address whether the testimony of a non-witness expert retained or dismissed by a party is admissible at trial. Admission or suppression of evidence is within the discretion of the trial judge and will not be reversed absent an abuse of that discretion.” Id. at 314. The court then analyzed the car dealer’s use of the engineer’s testimony against MRE 403, whose equivalent is codified in Nevada. “Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues or of misleading the jury.” NRS 48.035(1) “Although relevant, evidence may be excluded if its probative value is substantially outweighed by considerations of undue delay, waste of time or needless presentation of cumulative evidence.” NRS 48.035(2).

Applying this standard, the Mississippi Court concluded the engineer’s testimony was properly excluded from trial.

Except for his hypothesis that the axle broke in mid-air during the rollover, [the engineer’s] theory of the accident was nearly identical to that articulated by General Motors’ own experts. It added nothing new to the evidence presented and thus, would have been cumulative. Having found that [the engineer’s] deposition was obtained in contravention of Rule 26(b)(4)(b), we cannot say that the circuit court erred in refusing to allow his testimony.

General Motors Corp., 636 So. 2d at 314.

The Court noted the car dealer’s position “create the anomaly that although a party cannot depose an adversary’s non-testifying expert, a court can compel the witness to testify at trial.” Id. at 314-15. (quotation omitted)

Allowing General Motors to call Marcosky as a trial witness and to allude to the fact that he had been retained and later dismissed by the Jacksons would be highly prejudicial. Generally, when an expert formerly retained by a party is allowed to testify for an adverse party, he is restricted from mentioning the prior affiliation.

Id.at 315.

Federal courts have ruled similarly. In Ross v. Burlington Northern R.R., 136 F.R.D. 638 (N.D. III. 1991) a defendant sought to depose a plaintiff’s expert witness who had been disclosed but subsequently withdrawn.

Although plaintiff may have originally designated the witness as a testifying expert, plaintiff has the prerogative of changing his mind. Since plaintiff changed his mind before any expert testimony was given in this case, the witness never actually acted as a testifying expert witness. The court cannot find, then, that the shift in designation affects the witness’s current status as a non-testifying expert witness and denies him the protection afforded such a witness. See Durflinger v. Artiles, 727 F.2d 888, 891 (10th Cir. 1984) (special showing needed to obtain testimony of witness once denoted a probable testifying witness, now a consulting witness); Bailey v. Meister Brau, Inc., 57 F.R.D. 11, 13-14 (N.D. Ill. 1972) (expert originally designated as testifying witness on issue cannot be deposed on issue once plaintiff decides that expert will not testify on that issue).

Id. at 638-39. Other courts have followed Ross.

Be mindful, however, there may be an exception for IME physicians. In House v. Combined Ins. Co., 168 F.R.D. 236 (N.D. Iowa 1996) the plaintiff submitted to an independent medical examination. After the examination, however, defendant objected to the plaintiff’s efforts to depose the examiner and obtain a copy of her report. The court ruled the deposition could go forward due to the nature of a Rule 35 examination.

This exception does not seem to be settled law. FMC Corp. v. Vendo Co., 196 F. Supp.2d 1023 (E.D. Cal. 2002) also concerned the issue of an opposing party calling another party’s dedesignated expert. The court applied the exceptional circumstances test identical to that in NRCP 26(b)(4)(B) and did not let the deposition proceed. It distinguished from House, noting the experts at issue “did not perform a Rule 35 examination.” Id. at 1046. House was even rejected where a Rule 35 examination was performed, the defendant listed the examiner in its pretrial disclosure of witnesses and then withdrew the designation. Lehan v. Ambassador Programs, Inc., 190 F.R.D. 670 (E.D. Wash. 2000). Instead, the exceptional circumstances test of Rule 26(b)(4)(B) applied. Id. at 672.

What happened in my case? The motion was granted as to the discovery question. An interesting evidentiary question was left open, but never answered.

Dr. Wulff was not deposed, Wynn Las Vegas has no medical expert (Deft withdrew Dr. Wulff), and Dr. Oliveri is Pltf’s expert. Arguments by counsel. COMMISSIONER RECOMMENDED, motion is GRANTED IN PART; Dr. Wulff’s deposition is PROTECTED; Motion is DENIED WITHOUT PREJUDICE to Dr. Wulff’s report. Commissioner believes it is permissible for experts to use the document; however, the District Court Judge will determine whether the experts can utilize Dr. Wulff’s report; the report cannot come into evidence.

The next question might be, if the former expert is or was deposed, is that deposition testimony admissible at trial? The answer is far from clear. See Vicki Franks, An Expert’s Expertise: Is Expert Deposition Testimony Impermissible Hearsay or an Admission by a Party Opponent at Trial?, 36 Am. J. Trial Advoc. 26 (Fall 2012).