## Facts

- Emily Ager, through her father and guardian, sued a hospital and the attending physician for medical malpractice arising from her birth, alleging negligent care caused fetal asphyxia and permanent catastrophic injuries.
- During discovery, the physician served interrogatories seeking identification of persons consulted about the physician’s care and whether the plaintiff had obtained statements or written reports from them.
- The magistrate ordered answers but excluded “informally consulted” experts who were neither retained nor specially employed and were not expected to testify.
- Plaintiff’s counsel provided partial responses but refused to identify non-testifying consultative experts.
- The magistrate later indicated “retained” or “specially employed” generally implied some payment for services.
- The district court affirmed the magistrate’s discovery ruling and, after continued noncompliance, held plaintiff’s trial counsel in civil contempt to coerce compliance; the contempt order was stayed pending appeal.

## Issues

1. Whether Federal Rule of Civil Procedure 26(b)(4)(B) permits routine discovery of the identities and opinions of non-testifying experts retained or specially employed in anticipation of litigation absent “exceptional circumstances.”
2. Whether counsel’s civil contempt citation for refusing to disclose non-testifying consultative experts could stand when the underlying discovery order did not apply Rule 26(b)(4)(B)’s limitations.

## Decision

- The Tenth Circuit vacated the civil contempt order and remanded.
- The court held that discovery of non-testifying experts who are retained or specially employed is not available as a matter of course; it requires a showing of “exceptional circumstances” under Rule 26(b)(4)(B).
- The court directed the district court to conduct a two-step inquiry on remand: (1) classify consulted experts (informal consultants, retained/specially employed non-testifying experts, and testifying experts), and (2) permit discovery of the retained/specially employed non-testifying category only upon the required showing.
- Because the contempt order was premised on a discovery directive not properly limited by Rule 26(b)(4)(B), the coercive contempt sanction could not stand.

## Legal Principles

- Rule 26(b)(4)(A) authorizes broad discovery of experts expected to testify at trial.
- Rule 26(b)(4)(B) protects experts retained or specially employed in anticipation of litigation who are not expected to testify; their facts and opinions are discoverable only under Rule 35(b) or upon a showing of exceptional circumstances making alternative access impracticable.
- Informally consulted experts who are neither retained nor specially employed and will not testify are generally protected from disclosure as part of trial preparation.
- Payment or other indicia relevant to whether an expert is “retained or specially employed” triggers Rule 26(b)(4)(B)’s framework but does not eliminate the exceptional-circumstances requirement.
- A civil contempt order designed to coerce compliance may be reviewed on appeal; if the underlying order is legally erroneous or overbroad, the contempt sanction based on noncompliance must be vacated.

## Conclusion

The Tenth Circuit ruled that Rule 26(b)(4)(B) bars routine discovery into non-testifying retained or specially employed experts and requires a concrete showing of exceptional circumstances; because the discovery order was not properly constrained by that rule, the civil contempt order against counsel was vacated and the case remanded for proper expert classification and application of the exceptional-circumstances standard.


Ager v. Jane C. Stormont Hosp. & Training Sch. for Nurses, 622 F.2d 496 (10th Cir. 1980)