Mortage applicationThe “exceptional circumstances” test is used to determine if a party can depose an examining physician who is not designated by the other party as an expert witness.  In this recent case from Nevada federal court, a mortgagor sought to depose a non-designated psychologist who had examined the mortgagor pursuant to court-ordered independent medical examination.  The defendants filed emergency motion for protective order and motion to strike mortgagor’s expert designation of the psychologist.

Mrs. Downs asserted that a mortgagor (“Life”) issued mortgage protection insurance to her husband, which was to provide 12 monthly mortgage payments in the event of Mr. Downs’ death.  Mr. Downs passed away six months after he bought the insurance.  Mrs. Downs subsequently contacted Life to claim her benefits.  Life started a “contestability investigation” that Mrs. Downs said took about two and a half months.  While Life was conducting its investigation, the bank initiated foreclosure proceedings on her residence.  Mrs. Downs alleged Life’s failure to timely provide the benefits resulted in her inability to make the mortgage payments, which initiated the foreclosure proceedings.   Mrs. Downs claimed emotional distress.

Mrs. Downs disclosed as her expert witnesses her treating health care providers, Ms. BP, a marriage and family therapist, and Dr. RH, a pain management physician.  Mrs. Downs’s expert disclosure indicated that the two might be called to testify about her medical treatment, the necessity of future mental health treatment, and causation.  About a week later, Life was granted a court order that required Mrs. Downs to submit to two independent mental health examinations (IMEs) under Federal Rule of Civil Procedure 35.  A psychologist (Dr. A) was to administer psychological testing and psychiatrist Dr. P was to evaluate Mrs. Downs’s condition from a medical physician’s perspective.  Following the exams, both doctors prepared reports which were provided to Mrs. Downs’s counsel pursuant to Rule 35(b)(1).  In January 2013, Life disclosed its expert witness which listed Dr. P as a testifying expert.  Life did not identify Dr. A as a testifying expert, but listed his report as one of its exhibits.  Life elected only to retain Dr. A as a consultant for purposes of conducting the psychological testing.

Mrs. Downs issued a deposition subpoena to Dr. A, and then served a Supplemental Disclosure of Expert Witnesses, which listed Dr. A.  This disclosure acknowledged that Dr. A was retained by Life to conduct an IME and was not retained by Mrs. Downs.  The supplemental disclosure further stated that she intended to call Dr. A “to testify regarding his evaluation of Mrs. Downs pursuant to [the IME] he conducted on December 20, 2012.”  Life demanded that Mrs. Downs withdraw her supplemental disclosure, and Mrs. Downs refused.

Life contended that pursuant to Federal Rules of Civil Procedure 35 and 26(b)(4), Mrs. Downs was precluded from taking Dr. A’s deposition because he was a non-testifying consultant/expert whom Life did not disclose as a testifying expert witness; and that she could not demonstrate that “exceptional circumstances” existed to justify the deposition.

Mrs. Downs argued that the IMEs were “indivisible” and Dr. P clearly collaborated with Dr. A, but that the extent of this collaboration could not be determined without deposing Dr. A.  Mrs. Downs said that she should be able to depose the expert to find the basis of his psychological opinions which were relied on by Dr. P in completing her psychiatric examination.  She argued that “exceptional circumstances” existed as a non-testifying expert’s report would be used by a testifying expert as the basis for that expert’s opinion.  Under these circumstances, she argued that a party should be able to depose the non-testifying expert.

U.S. Magistrate for the District of Nevada, William G. Cobb, wrote in his opinion that under Rule 26(b)(4), a party may employ two types of experts: (a) those experts identified as “an expert whose opinions may be presented at trial” which the court will refer to as a “testifying” expert; and (b) experts “retained or specially employed … in anticipation of litigation or to prepare for trial and who [are] not expected to be called as a witness at trial.”  Rule 35 governs physical and mental examinations in cases where a party’s physical or mental condition is at issue.  This rule, Judge Cobb wrote, provides that the party who moved for such an examination must provide a copy of the examiner’s report which contains the examiners diagnoses, conclusions, and test results, upon request.  Rule 35 does not provide for taking the deposition of the examiner, but merely states that it “does not preclude … deposing an examiner under other rules.” (Emphasis added.)  Moreover, Judge Cobb explained, Rule 35 does not address whether the examined party may call the examiner to testify at trial as an expert. It is clear that the party conducting the exam may call the examiner to testify as an expert witness, but there is a split in the Circuits as to whether the party who was examined is entitled to call the examiner as an expert.

The judge cited the most frequently cited decision on the issue was Lehan v. Ambassador Programs, Inc. (E.D.Wash. 2000) where the court similarly ordered that a Rule 35 IME should proceed.  The examiner was initially named as the defendant’s expert witness. The plaintiff received the expert’s report pursuant to the rule. The defendant later advised the court it was not going to call the doctor as an expert witness because his opinions were not relevant to the discrimination claim.  The plaintiff, however, like Mrs. Downs, proceeded to identify the examiner in his own expert witness disclosure.  The defendant sought to exclude the expert’s report and to preclude the plaintiff from calling him as his expert witness.

The Lehan court held that each party was permitted to retain and call expert witnesses to support their case with testimony at trial, and each party was permitted to retain an expert to consult on a case without calling that person as a witness at trial.  The opinion went on to discuss three approaches that have been applied by courts: (1) the “entitlement” approach-by submitting to a Rule 35 examination, a plaintiff is “entitled” to “call an opposing party’s Rule 35 expert, despite the opposing party’s desire not to have the expert testify”; (2) the “discretionary” or “balancing” approach “involv[es] a balancing of the interests of the party and the court against the potential for prejudice to the party who hired the expert, but who does not wish to use that expert at trial”; and (3) the “exceptional circumstances” approach which relies on a combination of Rule 26(b)(4)(B) and Rule 26(b)(4)(A).  As a result, Judge Cobb remarked that courts recognize that there are interests weighing against allowing an opposing party to depose or to call at trial a consultative, non-testifying expert witness and will only allow such testimony in exceptional circumstances.

In Lehan, the court adopted the “exceptional circumstances” approach, finding that it “preserves the fundamental principles governing litigation while enabling the court to exercise its discretion to permit the calling of the Rule 35 examiner by the examined party upon the proper showing when justice requires.”  In applying this standard, Judge Cobb held that Mrs. Downs did not meet the “heavy burden” of establishing “exceptional circumstances.”  Judge Cobb also rejected the argument that Mrs. Downs should be able to depose and call Dr. A as a witness because Dr. P’s opinions were derived from Dr. A making it collaborative.  Although the court acknowledged that a collaborative arrangement may constitute “exceptional circumstances,” the record did not support this argument.  Mrs. Downs would be able to obtain equivalent information essential to her case preparation from other sources, such as her own experts regarding her alleged emotional distress.  In addition, Mrs. Downs could consult with her own experts regarding the impact of Dr. A’s report, both as it stood alone and as to whether Dr. P relied on any of Dr. A’s opinions. She also had the ability to question Dr. P about any reliance on Dr. A’s opinions.

Mrs. Downs did not establish that “exceptional circumstances” existed in this case.  As a result, Life’s Emergency Motion for Protective Order and Motion to Strike Mrs. Downs’ Designation of Dr. A as Testifying Expert were granted.

Case:  — F.R.D. —-, 2013 WL 427059 (D.Nev. Feb. 1, 2013)