West v. Bell Helicopter Textron, Inc. et al

Filing 624

ORDER granting 532 Motion in Limine to Compel the Pre-Trial Deposition of Bruce Millar. The parties shall confer and schedule the deposition to occur no later than October 25, 2017. So Ordered by Chief Judge Joseph N. Laplante.(jb)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Kurt West
v.

Civil No. 10-cv-214-JL
Opinion No. 2017 DNH 215

Bell Helicopter Textron, Inc.,
Goodrich Pump and Engine
Control Systems, Inc., and
Rolls-Royce Corp.
SUMMARY ORDER
Plaintiff Kurt West moves the court to compel defendant
Goodrich Pump and Engine Control Systems (“GPECS”) to produce
one of its designated experts for deposition.

Having been

designated as an engineering expert by GPECS, Bruce Millar
testified in that capacity at the 2013 trial.

GPECS served a

supplemental report by Millar in accordance with the schedule
set by this court in advance of the upcoming retrial of this
matter.1

On the basis of that supplemental report, West noticed

Millar’s deposition.

Three days before that deposition was

scheduled to occur, GPECS withdrew Millar’s supplemental report
and cancelled his deposition on the grounds that his testimony
at trial would be limited to those opinions disclosed before and

See Proposed Discovery Plan (doc. no. 504); Order of June 2,
2017 (doc. no. 505).
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testified to during the 2013 trial.

West now moves to compel

Millar’s deposition.
“A party may depose any person who has been identified as
an expert witness whose opinions may be presented at trial.”
Fed. R. Civ. P. 26(b)(4)(A).
as an expert witness.

Here, Millar has been identified

He produced a supplemental report.

GPECS’ subsequent withdrawal of that supplemental report does
not insulate him from being deposed anew.

See, e.g., Brigham

Young Univ. v. Pfizer, Inc., No. 2:12-MC-143 TS BCW, 2012 WL
1029304, at *4 (D. Utah Mar. 26, 2012) (denying motion to quash
deposition of withdrawn expert who had already issued reports);
Hill v. Kaiser-Francis Oil Co., No. CIV-09-07-R, 2012 WL 528280,
at *2 (W.D. Okla. Feb. 17, 2012) (opposing party entitled to
depose withdrawn expert whose earlier opinions were introduced
during class action certification proceedings); see also S.E.C.
v. Koenig, 557 F.3d 736, 744 (7th Cir. 2009) (“Disclosure of the
report ends the opportunity” to reclassify a designated
testifying expert as a trial-preparation expert); 6-26 Moore's
Federal Practice - Civil § 26.80 (2017) (“Once a party has
designated an expert witness as someone who will testify at
trial, the later withdrawal of that designation may neither
prevent the deposition of that witness by the opposing party nor
the expert’s testimony at trial.”).

2

Different circumstances may compel a different result.
There appears to be some dispute whether, for example, the court
may or ought compel the testimony of an expert witness who,
having once been designated as a testifying witness, has been
re-designated as a consulting expert absent the showing of
“exceptional circumstances” contemplated by Rule 26(a)(2)(D)
(ii).

See R.C. Olmstead, Inc. v. CU Interface, LLC, 657 F.

Supp. 2d 899, 904 (N.D. Ohio 2009), aff'd, 606 F.3d 262 (6th
Cir. 2010) (analyzing authority and concluding that redesignated
expert may not be deposed absent “exceptional circumstances”).
But that is not the case here:

Millar is not subject to the

protections afforded to consulting experts because GPECS has
represented that he will yet testify, albeit on a less expansive
basis.

The same circumstance differentiates this case from

Jasty v. Wright Med. Tech., Inc., 528 F.3d 28, 39 (1st Cir.
2008), in which the First Circuit Court of Appeals affirmed the
district court’s decision denying one party’s motion to compel
the testimony of its opponent’s expert witness at trial after
its opponent decided not to call that expert to the stand.
As GPECS points out, of course, West would have no basis on
which to depose Millar anew had GPECS never supplemented his
report.2

2

But he did and, having done so, may now be deposed anew

See Obj. (doc. no. 574) at 3-4.

3

despite GPECS’s withdrawal of his supplemental report.3

West’s

motion to compel Millar’s deposition4 is therefore GRANTED.

The

parties shall confer and schedule the deposition to occur no
later than October 25, 2017.
SO ORDERED.

Joseph N. Laplante
United States District Judge
Dated:
cc:

October 4, 2017

Joan A. Lukey, Esq.
Justin J. Wolosz, Esq.
Genevieve Aguilar, Esq.
John C. Calhoun, Esq.
Samuel N. Rudman, Esq.
John P. O’Flanagan, Esq.
L. Robert Bourgeois, Esq.
Brian M. Quirk, Esq.
Kathleen Marie Guilfoyle, Esq.
Jason L. Vincent, Esq.
Phillip S. Bixby, Esq.
Marie J. Mueller, Esq.
Martha C. Gaythwaite, Esq.

Though it likely goes without saying, this ruling does not open
the door for the renewed deposition of any expert who has not
issued a supplemental report.
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4

Document no. 532.

4