Coates v. AC & S, Inc.
133 F.R.D. 109, 21 Fed. R. Serv. 3d 94, 1990 U.S. Dist. LEXIS 16002 (1990)
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Rule of Law:
The potential for "expert shopping" with unique, non-reproducible evidence, such as tissue samples from a deceased individual, creates an exceptional circumstance under Federal Rule of Civil Procedure 26(b)(4)(B), making the opinions of non-testifying consulting experts discoverable to prevent the suppression of truth and avoid misleading the jury.
Facts:
- Charles Coates allegedly developed peritoneal mesothelioma and subsequently died.
- After his death, tissue samples were taken from his body for pathological analysis.
- Both the plaintiff (Coates' estate) and the defendants sent these tissue samples to their respective chosen experts.
- The defendants sent the samples to certain experts for review.
- The defendants later designated these specific experts as non-testifying experts who had been retained in anticipation of litigation.
Procedural Posture:
- This discovery dispute arose within a lawsuit filed in a U.S. District Court (trial court).
- The court had previously issued an order requiring parties to file the names of all experts to whom they had submitted tissue samples.
- Defendants complied, but designated certain experts who received samples as non-testifying experts under Rule 26(b)(4)(B).
- The plaintiff filed a motion to compel discovery, seeking to depose the defendants' non-testifying experts or obtain their written reports and test results.
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Issue:
Does the potential for "expert shopping" with unique and irreplaceable evidence, such as post-mortem tissue samples, constitute an "exceptional circumstance" under Federal Rule of Civil Procedure 26(b)(4)(B), thereby permitting discovery of opinions from retained experts who are not expected to testify at trial?
Opinions:
Majority - Charles Schwartz, Jr., District Judge
Yes, the potential for expert shopping with irreplaceable evidence like post-mortem tissue samples constitutes an exceptional circumstance under Rule 26(b)(4)(B). This makes the opinions of non-testifying experts discoverable because it is otherwise impracticable for the opposing party to obtain facts or opinions on the same subject and is necessary to prevent the jury from being misled. The court reasoned that the primary goal of litigation is the pursuit of truth, not a victory for the best trial strategist. In cases with difficult diagnoses like mesothelioma, parties might send samples to multiple experts and present only the one with a favorable opinion, which misleads the jury about the true level of expert consensus or disagreement. Preventing the plaintiff from discovering how many other experts could not make a definitive diagnosis would allow the defendant to suppress the truth. This situation makes it impracticable for the plaintiff to obtain this information by other means, thus satisfying the 'exceptional circumstances' exception. Furthermore, the court found the situation analogous to a physical examination under Rule 35, where the reports of all examining physicians would be discoverable.
Analysis:
This decision carves out a significant application of the "exceptional circumstances" exception to the general rule protecting consulting expert opinions under Rule 26(b)(4)(B). It elevates the judicial goal of truth-seeking over a party's strategic interest in shielding unfavorable expert work-product, particularly in cases involving unique physical evidence that cannot be replicated. This ruling discourages 'expert shopping' in toxic tort and medical malpractice litigation by making the results of such 'shopping' discoverable, thereby compelling parties to be more transparent about the range of expert opinions they have solicited on a single piece of evidence.
