Most attorneys and claims professionals are accustomed to thinking of a party’s retained expert as being the “property” of that party for the purposes of litigation, whether that expert is designated for testimony or as a non-testifying consultant. A 2011 decision from the U.S. District Court for the Western District of Oklahoma, however, suggests that, with respect to a testifying expert that has been proffered for deposition, this thinking is not necessarily correct.
In Guinn v. CRST Van Expedited, Inc., (W.D. Oklahoma CIV-09-1198-D, 2011), the plaintiff was the driver of a semi tractor-trailer rig that was struck by another semi tractor-trailer entering the eastbound lane of I-40. The driver of the first rig was killed and his wife brought an action for negligence against the owner of the truck, the parent company of the owner and their insurer.
The plaintiff had retained a Dr. Glen Honeycutt as an expert witness. He prepared a report and was listed in the pre-trial order as a testifying expert. After taking Honeycutt’s deposition, the defense concluded that they did not need to retain an expert witness because the defense believed that Honeycutt’s deposition testimony was of sufficient help to them without a defense expert. Both plaintiff and defendant listed Dr. Honeycutt as a potential expert witness. After motions in limine prior to trial, the plaintiff removed Dr. Honeycutt from its list of testifying witnesses but the defendant continued to list him.
The plaintiff objected to the defense’s use of Dr. Honeycutt, arguing that permitting use of plaintiff’s former expert by the defense would be prejudicial to the plaintiff and was contrary to the provisions of Rule 26 of the Federal Rules of Civil Procedure. In the alternative, the plaintiff requested leave of the Court to call Dr. Honeycutt as plaintiff’s expert witness if the defense were allowed to present Dr. Honeycutt’s deposition testimony at trial.
The Guinn trial court noted that Federal Rule of Civil Procedure 26(b)(4) "is silent as to how the court should treat the request by a party to use an adverse party’s designated expert at trial after the adverse party withdraws that expert’s designation”, citing Ferguson v. Michael Food, Inc., 189 F.R.D. 408, 409 (D. Minn. 1999). Plaintiff also cited the decision of House v. Combined Ins. Co. of America, 168 F.R.D. 236 (N.D. Iowa 1996) in which that court held that an opposing party is not authorized to depose the adverse party’s expert witness when that witness has been withdrawn prior to a scheduled deposition. The Guinn court found, however, that the circumstance in the Guinn case was different. Honeycutt was not withdrawn as an expert until after his expert report was prepared, he had been listed in two proposed pretrial reports as a testifying expert witness on behalf of Plaintiff, and Defendant had taken his deposition.
The Guinn court found that the provisions of Rule 26(b)(4)(D) concerning experts retained only as consultants, including the analysis of exceptional circumstances, was not applicable to an expert witness that had been designated for trial testimony. The court looked at Peterson v. Willie, 81 F. 3d 1033, 1037 (11th Cir. 1996) in which that court considered the potential prejudice of a jury learning that one party’s testifying expert had been withdrawn and was then being called by the adverse party. The Peterson court concluded that, while it was error for the trial court to permit the calling party to elicit testimony that the expert was originally retained by the opposing party, that error did not mandate reversal. The 11th Circuit concluded that whether to permit such testimony was within the trial court’s discretion and should be determined on a case-by-case basis under the specific circumstances of each case.
The Guinn court noted that Dr. Honeycutt was to be called by the defense through deposition, not as a live witness, and that the portions of deposition testimony designated for use by the defense did not include any discussion of which party retained him. The court therefore permitted the defense to use Dr. Honeycutt’s deposition testimony at trial. The court did rule, as well, that the plaintiff could call Dr. Honeycutt as a live witness if they chose to do so.
While this is not a clear area of law under Federal precedent, this ruling from the Western District of Oklahoma suggests that a party should be careful with designation of experts and should be especially careful to know what an expert is going to say before commissioning a report, making a Rule 26 designation and putting the expert up for deposition testimony.