## Facts

- An estate brought a federal asbestos wrongful-death action alleging the decedent, a longtime insulator, developed and died from diffuse peritoneal mesothelioma after workplace asbestos exposure.
- After the decedent’s death, tissue samples were removed and distributed for pathological evaluation.
- Defendants sent tissue samples to several retained experts designated as non-testifying consulting experts under Fed. R. Civ. P. 26(b)(4)(B).
- The estate moved to compel production of the consultants’ reports, diagnoses, and test results and/or to depose the consultants.
- The court had previously acted to curb “tissue shopping” in related asbestos litigation by requiring parties to disclose to whom tissue samples were sent.

## Issues

1. Whether Rule 26(b)(4)(B) permits discovery of facts known and opinions held by defendants’ non-testifying consulting experts who examined the decedent’s tissue samples.
2. Whether “exceptional circumstances” existed because it was impracticable for the estate to obtain equivalent facts or opinions by other means.
3. What conditions, including payment of fees and expenses, should govern any compelled discovery from non-testifying experts.

## Decision

- The court granted the estate’s motion to compel.
- It found exceptional circumstances under Rule 26(b)(4)(B) because obtaining comparable evidence by other means was impracticable given the decedent’s death and the limited, non-replicable tissue material already used for testing.
- The estate was permitted to obtain the consultants’ reports, diagnoses, and test results and to take depositions of the consultants.
- Discovery was conditioned on payment of the consultants’ reasonable time, fees, and expenses associated with deposition and, where applicable, report preparation.

## Legal Principles

- Facts known and opinions held by non-testifying experts retained in anticipation of litigation are generally protected from discovery under Rule 26(b)(4)(B).
- Discovery from such experts may be ordered upon a showing of exceptional circumstances making it impracticable for the requesting party to obtain equivalent facts or opinions by other means.
- Where unique biological evidence has been distributed to experts and cannot be meaningfully replicated, courts may find exceptional circumstances and require disclosure of resulting testing and opinions, even if the expert will not testify.
- Courts may impose cost-shifting conditions requiring the requesting party to pay reasonable expert fees and expenses for compelled deposition and related work.

## Conclusion

The court ordered discovery from defendants’ non-testifying consulting experts because the decedent’s tissue constituted unique, limited evidence and the estate could not practicably obtain equivalent pathology information independently; compelled access to reports and depositions was allowed subject to reasonable fee and expense payment.


Coates v. A.C. & S, Inc., 133 F.R.D. 109 (E.D. La. 1990)