February 06, 2013 Top Story

Experts Cannot Be Shielded from Discovery by Re-designation

Expert disclosures, not designations, dictate discovery and use of experts

M. Derek Harris

In the federal courts, there is a split on the issue of whether re-designation of an expert from a testifying to a consulting expert works to foreclose discovery from that expert after the expert’s opinions have been disclosed. The Arizona Court of Appeals confronted this issue directly and concluded that after an expert’s opinions have been disclosed, “the cat is out of the bag” and discovery will be permitted. Para v. Anderson [PDF].

In Para v. Anderson, the court accepted special action jurisdiction to answer the question of “whether an expert witness whose opinions have been disclosed may be shielded from discovery by mere re-designation.” The court answered this purely legal question of first impression “in the negative.” Specifically, the court ruled that “a party may not reinstate the privileges and discovery protections that apply to consulting experts by re-designating the expert as a consultant once the opinions have been disclosed.”

Disclosure of the Expert Determines Access to the Expert

In Para v. Anderson, the plaintiff sued multiple medical corporations and doctors for negligence and wrongful death. The plaintiff disclosed an expert witness, Dr. Steven Pantilat, who would testify that a defendant’s treatment of the decedent fell below the applicable standard of care as the defendant “negligently failed to order appropriate tests and ensure the decedent’s examination and treatment by a general surgeon.” Following the disclosure of Dr. Pantilat’s opinions in a preliminary affidavit, that defendant settled with the plaintiff.

Thereafter, another defendant noticed Dr. Pantilat’s deposition and gave notice of his intent to rely on the plaintiff’s previous disclosure of Dr. Pantilat’s opinions the former codefendant. The plaintiff responded by filing a notice re-designating Dr. Pantilat from a testifying expert to a consulting expert only and moving the court for a protective order barring the remaining defendants from deposing Dr. Pantilat or seeking any other discovery from him. The trial court granted the plaintiff’s motion and ordered that “Dr. Pantilat cannot be deposed.” Defendants appealed the decision.

The Arizona appellate court ordered that the deposition of Dr. Pantilat could proceed. The court reasoned that, “[o]nce the party chooses to disclose the expert’s information and opinions, a mere change of label cannot erase the effect of the disclosure. If the nominal re-designation of an expert after disclosure could restore the privilege against discovery, form would triumph over substance, and the effectiveness of the discovery rules as tools for efficient and fair resolution of disputes would be blunted.” The court further noted that its decision was consistent with the policy underlying Arizona Rule of Civil Procedure 26(b)(4), which is substantially similar to Rule 26(b)(4) of the Federal Rules of Civil Procedure.

Discovery after Disclosure Should Be Permitted

The Arizona court “got it right under existing law,” says Edward A. Salanga, Phoenix, cochair of the ABA Section of Litigation’s Expert Witnesses Committee. “This decision stands for the proposition that you can’t re-characterize your previously disclosed testifying expert under these facts as a consulting expert to avoid additional discovery directed to the expert’s opinions” or “re-cloak your expert with the work product privilege,” observes Salanga.

“I agree with the opinion,” adds Christina M. Liu, Chicago, cochair of the Section of Litigation’s Young Advocates Committee. The court is “not permitting parties to use the discovery rules as a sword and a shield,” says Liu. “One of the major foundations of the discovery process is that you don’t want parties playing games with each other,” and, “doing this prevents that kind of game playing,” she explains.

Disclosure Doesn’t Mean Everything Is Fair Game

While the appellate court ordered that the deposition of Dr. Pantilat could proceed, it did not give the opposing parties free rein to use the expert’s testimony as they pleased. Rather, the court held that the trial judge retained “broad discretion” to “regulate the use of that expert’s testimony at trial.” Thus, what testimony is admitted will be determined on a case-by-case basis.

“I think the court came down on the right side,” says Kevin J. Bruno, New York City, cochair of the Section’s Expert Witnesses Committee. The court “tempered that ruling and its possible impact by saying ‘we’re going to defer to the trial court on how that expert’s testimony can be used at trial,” he notes. “It would be very troubling to have a situation where you are not only saying ‘too bad, the cat is out of the bag,’ but you cannot shield this expert from any further discovery, and then go to the next level and say ‘it’s open season.’ I think that would be a problem,” concludes Bruno.

When It Comes to Experts, Exercise the Right to Remain Silent

If parties want to protect their experts from disclosure, the safest course is to delay disclosure as long as possible consistent with the applicable procedural rules. Litigants need to be “sure that an expert is going to be your testifying expert before you identify him as such,” advises Bruno. If you are not sure, “keep the expert on the other side of the ledger and do not reveal who that expert is under any circumstance until you are required to designate testifying experts,” he cautions.

The bottom line is “once you have designated the expert and disclosed the expert’s opinion, there are very few circumstances where you’re going to be able to essentially re-designate the expert as a consultant to bring the privilege back,” warns Salanga. If you give up the right to have your experts remain silent by designating them as testifying experts and disclosing their opinions, discovery will likely be permitted, and your experts’ testimony may be used against you.

M. Derek Harris is an associate editor for Litigation News.

Keywords: testifying expert, consulting expert, Civil Rule 26(b)(4)

Related Resources

  • Para v. Anderson, No. 1 CA-SA 12-0086 (Ariz. Ct. App. Nov. 1, 2012).
  • Ariz. R. Civ. P. 26(b)(4).
  • Fed. R. Civ. P. 26(b)(4).

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