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Ager v. Jane C. Stormont Hospital & Training School for Nurses

United States Court of Appeals for the Tenth Circuit · 1980 · Civil Procedure

Civil ProcedureDiscoveryExpert WitnessesCivil ContemptFRCP 26(b)(4)(B)FRCP 26(b)(1)non-testifying expertsconsulting experts

Facts

In a malpractice suit arising from injuries allegedly sustained at birth, defendant physician served interrogatories asking whether plaintiff had contacted persons regarding the care and treatment at issue, their identities, and whether plaintiff had statements or reports from them. The magistrate ordered answers, except as to experts informally consulted but never retained or specially employed and not expected to testify, and later defined retained or specially employed largely in terms of paid consultation. Plaintiff's counsel refused to disclose information about consultative experts not expected to testify, sought review, lost in the district court, and was held in civil contempt for continued noncompliance.

Issue

Whether the district court properly held counsel in civil contempt for refusing to comply with the discovery order, and whether Rule 26(b)(4)(B) permits routine discovery of the identities of non-testifying experts retained or specially employed in anticipation of litigation absent a showing of exceptional circumstances. The case also raised how to distinguish retained or specially employed experts from experts only informally consulted.

Rule

A coercive civil contempt order cannot stand if the underlying order is invalid. Under Rule 26(b)(4)(B), the identity and other collateral information concerning an expert retained or specially employed in anticipation of litigation but not expected to testify at trial are not discoverable, except as provided in Rule 35(b) or upon a showing of exceptional circumstances under which it is impracticable to obtain facts or opinions on the same subject by other means. If an expert was only informally consulted in anticipation of litigation, no discovery may be had as to the expert's identity or opinions. Whether an expert was informally consulted or retained or specially employed must be determined ad hoc by considering the initiation of the consultation, the nature and extent of information provided, the duration and intensity of the relationship, and the terms of the consultation.

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In a products-liability suit in Denver, Nora Kim hired an accident-reconstruction engineer through her lawyer to review photographs, inspect the damaged ladder, and prepare a written assessment. After receiving the assessment, Nora decided not to call the engineer at trial. The manufacturer serves an interrogatory asking for the engineer’s name and business address, but offers no reason why it cannot hire its own engineer.

How should the court rule on the interrogatory?

Explanation. The majority held that the identity and other collateral information of an expert retained or specially employed in anticipation of litigation, but not expected to testify, are not discoverable absent Rule 35(b) or exceptional circumstances. The general identity language of Rule 26(b)(1) does not override the more specific protection of Rule 26(b)(4)(B). Because the manufacturer has shown no exceptional circumstances, disclosure should be denied. (Derived from Ager v. Jane C. Stormont Hospital & Training School for Nurses (1980).)