Decena v. American International Companies AIG et al
ORDERED that Rafael Decena's 98 MOTION for APPEAL/REVIEW OF MAGISTRATE JUDGE DECISION to District Court re 97 Order on Motion to Compel and for Sanctions is DENIED. Signed by Judge Carl Barbier on 5/1/2012.(gec, ) Modified file date on 5/2/2012 (gec, ).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
COMPANIES (AIG), ET AL
Before the Court is Plaintiff Rafael Decena’s Motion to
Review Magistrate’s Order (Rec. Doc. 98).
In the motion,
Plaintiff seeks review of the magistrate judge’s Order denying in
part his Motion to Compel Deposition and for Sanctions (Rec. Doc.
Upon review of the record, the memoranda of counsel, and
the applicable law, the Court now concludes that the Plaintiff’s
motion should be DENIED.
This civil action arises out of the denial of a claim for
benefits under a truckers occupational accident insurance policy,
through which Plaintiff Rafael Decena maintained accident and
Plaintiff’s Complaint alleges that Defendants
American International Companies AIG, Chartis Specialty Insurance
Company, and National Union Fire Insurance Company of Pittsburgh,
PA (collectively, “Defendants”) were the insurers under the
policy, and that they improperly and in bad faith denied his
While the case was pending, the Court ordered Plaintiff to
submit to an independent medical examination (“IME”), to be
conducted by Defendants’ designated expert, Dr. Avanelle Jack, on
March 13, 2012.1
During the IME, Plaintiff reportedly
experienced kidney failure, prompting Dr. Jack to prescribe
emergency dialysis treatment.
Subsequently, on April 17, 2012,
Defendants notified Plaintiff’s counsel that Dr. Jack would no
longer be testifying as an expert and would instead be retained
solely as a non-testifying, consulting expert.
informed Plaintiff’s counsel that Dr. Jack would not be produced
for deposition and would not prepare an expert report.
20, 2012, Plaintiff filed a Motion to Compel the Deposition of
Dr. Jack and for Sanctions.2
In the motion, Plaintiff argued
that the re-designation of Dr. Jack as a non-testifying expert
does not preclude him from deposing her as a testifying expert
under FED. R. CIV. P. 26(b)(4)(A).
On April 30, 2012, the Magistrate Judge denied Plaintiff’s
motion, in part, stating:
The deposition of Dr. Jack shall go forward on May 2,
2012, limited to what she observed during the IME that
was performed on March 13th and the reasons she ordered
treatment for plaintiff. To the extent that Dr. Jack
requested plaintiff’s medical history during the course
of the IME, she should be prepared to testify to that
as well. Because Dr. Jack will not be testifying as an
Rec. Doc. 21.
Rec. Doc. 73.
expert for the defendants, there is no reason to go
into any report she may have previously issued for that
purpose. Nor shall she be questioned on issues of
Plaintiff immediately filed a motion seeking an order from
this Court overturning the magistrate’s order and compelling
Defendants to produce Dr. Jack for an unrestricted deposition.
Plaintiff also requested that the motion be heard on an expedited
basis because Dr. Jack’s deposition is scheduled for May 2, 2012,
two days after the magistrate’s ruling was issued.4
A magistrate judge’s ruling on a non-dispositive civil
motion, such as a discovery motion, may be appealed to the
FED. R. CIV. P. 72(a).
When a timely objection
is raised to such a ruling, the district judge must review the
magistrate’s ruling and “modify or set aside any part of the
order that is clearly erroneous or contrary to law.”
this highly deferential standard, a magistrate judge’s ruling
“should not be rejected merely because the court would have
decided the matter differently.” Ordemann v. Unidentified Party,
No. 06-4796, 2008 WL 695253, at *1 (E.D. La. Mar. 12, 2008)
(quoting Rubin v. Valicenti Advisory Servs., Inc., 471 F. Supp.
2d 329, 333 (W.D.N.Y. 2007).
Instead, the decision must be
affirmed unless “on the entire evidence [the court] is left with
Rec. Doc. 97.
See Rec. Doc. 99.
a definite and firm conviction that a mistake has been
United States v. Untied States Gypsum Co., 333 U.S.
364, 395 (1948).
After reviewing the case, the magistrate judge’s order, and
the arguments of the parties, this Court finds that no such
mistake has been made with respect to the magistrate’s partial
denial of Plaintiff’s Motion to Compel Discovery and for
As Plaintiff’s own motion acknowledges, there is no
consensus of authority as to whether an expert initially
designated as a testifying expert witness, but later designated
as a non-testifying expert before the disclosure of her expert
report, may nonetheless be deposed as a testifying expert under
FED. R. CIV. P. 26(b)(4)(A).
The principal case on which
Plaintiff relies, House v. Combined Insurance Co. of America, 168
F.R.D. 236 (N.D. Iowa 1996), has been described as representing
the “minority approach” with respect to this issue.
Olmstead, Inc. v. CU Interface, LLC, 657 F. Supp. 2d 899, 903
(N.D. Ohio 2009).
In contrast, the majority of courts to have
addressed the issue have held that a party is only entitled to
depose a non-testifying expert – even when the expert had
previously been designated as a testifying expert – upon a
showing of “exceptional circumstances,” as required under Fed. R.
Civ. P. 26(b)(4)(B).
Id. at 904.
The courts adopting the majority rule have almost
universally concluded that the purposes of Rule 26 are better
served by requiring a party to show “exceptional circumstances”
to depose a non-testifying expert.
As these courts have noted,
the purpose of Rule 26(b)(4)(A) is to ensure a party’s ability to
properly prepare to effectively cross examine his opponent’s
experts at trial.
FED. R. CIV. P. 26, Advisory Committee Notes
(1970); see also Hoover v. United States Dep't of the Interior,
611 F.2d 1132, 1142 (5th Cir.1980) (“The primary purpose of [Rule
26(b)(4)(A)’s required disclosures about experts expected to be
called at trial] is to permit the opposing party to prepare an
Rule 26(b)(4)(B), in contrast,
is intended to prevent one party from being able to benefit from
his opponent’s trial preparation.
See FED. R. CIV. P. 26,
Advisory Committee Notes (1970) (“A party must as a practical
matter prepare his own case in advance of [disclosure of experts
and reports], for he can hardly hope to build his case out of his
Where an expert will not testify at
trial, the purposes of Rule 26(b)(4)(A) are not served by
allowing his opponent to depose the expert, as there is no need
to prepare for cross-examination.
See R.C. Olmstead, Inc., 657
F. Supp. 2d at 904; Estate of Manship v. U.S., 240 F.R.D. 229,
236 (M.D. La. 2006); In re Shell Oil Refinery, 132 F.R.D. 437
(E.D. La. 1990).
Furthermore, permitting the deposition of a
non-testifying expert will, in most cases, frustrate the purposes
of Rule 26(b)(4)(B) by essentially allowing a party to utilize
his opponent’s expert’s opinions to prepare his own case, and at
his opponent’s expense.
The magistrate judge relied on this
reasoning in her decision to adopt the majority rule on this
issue, and considering the divergent opinions among the courts,
as well as the absence of clear authority to the contrary from
the Fifth Circuit, the Court is not persuaded that the law
compels a contrary result.
Accordingly, because the Court finds
that the magistrate’s ruling was not “clearly erroneous or
contrary to law,” as required under Rule 72(a),
IT IS ORDERED that the Plaintiff’s Motion to Review
Magistrate Judge’s Order is DENIED.
New Orleans, Louisiana this 1st day of May, 2012.
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
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