Facts
- Jody House sued her employer, Combined Insurance Company of America, and a supervisor, alleging sexual harassment and related claims.
- Combined retained psychiatrist Dr. Michael Taylor to conduct a mental examination of House and designated him as an expert expected to testify at trial.
- House noticed Taylor’s deposition and sought production of his examination report.
- After House sought discovery, Combined stated it would not call Taylor at trial, removed him from its witness list, moved to quash the deposition, and sought a protective order under Federal Rule of Civil Procedure 26(b)(4)(B) (non-testifying experts).
- A magistrate judge ordered production of Taylor’s report under Rule 35(b) but barred Taylor’s deposition absent “exceptional circumstances.”
- On review, the district court addressed whether House could depose Taylor and the extent to which House could use Taylor’s examination evidence at trial given Combined’s attempted reclassification of Taylor as non-testifying.
Issues
- Whether a party that designates an expert as expected to testify may later withdraw the designation and invoke Rule 26(b)(4)(B) to block the opponent from deposing the expert absent “exceptional circumstances.”
- Whether, and under what limits, the opposing party may use the expert’s examination evidence at trial when the expert was originally retained by the opponent.
Decision
- The court permitted House to depose Dr. Taylor; Rule 26(b)(4)(B)’s “exceptional circumstances” requirement did not apply once Taylor had been designated as a testifying expert.
- The court allowed House to obtain and use Taylor’s examination evidence (including through deposition testimony), but limited discovery and trial evidence concerning the circumstances of Taylor’s retention by Combined.
- Combined’s request to bar disclosure of how Taylor was hired or obtained was granted; its broader request to shield Taylor from discovery and use was denied.
Legal Principles
- An expert identified as expected to testify is subject to discovery under Rule 26(b)(4)(A), including deposition; the heightened protection for non-testifying experts in Rule 26(b)(4)(B) does not apply.
- A party cannot restore Rule 26(b)(4)(B) protection merely by later withdrawing or “un-designating” a previously disclosed testifying expert, particularly where the opponent has relied on the original designation.
- Rule 35(b) entitles the examined party to the examiner’s report when a mental examination is conducted.
- Courts may limit evidence about an expert’s retention to reduce unfair prejudice and protect trial strategy, while permitting discovery and use of the expert’s substantive opinions and examination findings.
Conclusion
The court ruled that Combined’s prior designation of its psychiatrist as a testifying expert opened the expert to deposition and substantive use by House, and that a later attempt to withdraw the designation could not reimpose non-testifying expert protections, though the jury could be shielded from learning the details of the expert’s original retention.