Court Compels Discovery from Non-Testifying Expert Finding Exceptional Circumstances Under Rule 26

U.S. District Court for the Middle District of North Carolina, September 27, 2021

Plaintiff Laura M. Walls filed a products liability action on behalf of the estate of her husband, Robie W. Walls (decedent). The plaintiff alleged that defendant Pneumo Abex LLC, among others, manufactured, sold, and/or distributed asbestos-containing products or raw asbestos materials for use in North Carolina and other states at times relevant to this action, and the decedent’s exposure to such products caused him to develop mesothelioma, resulting in his death on October 15, 2020.

The issue before the court was caused by the way in which the plaintiff’s expert, Dr. Brent Staggs, divided the decedent’s pathology material among the parties’ experts. Abex argued that Dr. Staggs did not evenly divide the pathology material, as agreed to by the parties, to the detriment of Abex’s expert. Upon notifying the plaintiff of the issue, Abex requested information from the plaintiff’s expert, Dr. Ronald Gordon, specifically the fiber burden analysis Dr. Gordon performed on his share of the pathology tissue. The plaintiff declined to release Dr. Gordon’s fiber burden study on the basis that “Gordon was not a testifying expert at that point.”

Thereafter, Abex filed, and other defendants joined, a motion to compel documents related to the testing of the decedent’s pathology material. Specifically, the motion sought an order compelling the plaintiff to produce Dr. Gordon’s fiber burden study.

“The purpose of discovery is to provide a mechanism for making relevant information available to the litigants.” Fed. R. Civ. P. 26 advisory committee’s notes, 1983 Amendment. Under Federal Rule of Civil Procedure Rule 26, “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). Rule 26 requires litigants to exchange various information, including “the identity of any [expert] witness [they] may use at trial to present evidence,” Fed. R. Civ. P. 26(a)(2)(A). Expert witnesses generally must prepare a report that memorializes, inter alia, the opinions they intend to offer, the basis for those opinions (to include “the facts or data considered”), and their qualifications. Fed. R. Civ. P. 26(a)(2)(B).

However, a party [ordinarily] may not, by interrogatories or 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 to prepare for trial and who is not expected to be called as a witness at trial. But a party may do so only: (i) as provided in [Federal] Rule [of Civil Procedure] 35(b); or (ii) on showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means. Fed. R. Civ. P. 26(b)(4)(D). Here, the parties had addressed only the second exception, regarding whether the situation presented exceptional circumstances warranting discovery from Dr. Gordon, the plaintiff’s consulting expert.

According to Abex, Dr. Gordon’s “[fiber burden analysis], including the grids and filters [he] prepared for his analysis” were subject to discovery because “Dr. Staggs, the plaintiff’s selected expert, failed to divide the tissue equally as instructed, leaving Abex with an inadequate and unequal share of the tissue and because Dr. Gordon thereafter performed destructive testing on his share of the material.”

The court stated that the plaintiff appeared to have engaged in strategic behavior regarding Dr. Gordon’s belated designation as a consulting expert. Additionally, since Dr. Gordon performed destructive testing on his share of the pathology materials, Abex’s expert could not replicate his analysis on the sample.

The court, therefore, found Abex demonstrated exceptional circumstances such that it may discover certain “facts known … by [Gordon],” Fed. R. Civ. P. 26(b)(4)(D), to include facts about the portion of the decedent’s pathology materials that Dr. Gordon analyzed (and/or samples Dr. Gordon prepared based on those materials).

Read the full decision here.