Drake et al v. Allergan, Inc.
Filing
139
OPINION AND ORDER denying 124 MOTION to Compel Production of Materials Relating to Plaintiffs' Expert Dr. David Kessler. Signed by Judge William K. Sessions III on 10/29/2014. (hbc)
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
KEVIN DRAKE and LORI DRAKE,
individually and as next friend
of J.D.
Plaintiffs,
v.
ALLERGAN, INC.
Defendant.
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Case No. 2:13-cv-234
Opinion and Order
Defendant Allergan, Inc. (“Allergan”) moves to compel the
production of documents showing 1) how much money Plaintiffs’
expert Dr. David Kessler has received from serving as an expert
witness since 2011 and 2) the percentage of his total income
over that time that expert witness fees represent.
For the
reasons detailed below, Allergan’s Motion to Compel is denied.
Rule 26 states that an expert’s report must contain “a
statement of the compensation to be paid for the study and
testimony in the case.”
Fed. R. Civ. P. 26(a)(2)(B)(vi).
Under
the plain meaning of the Rule, this required disclosure is
limited to the present case.
Communications between a party’s
attorney and an expert witness are generally protected from
disclosure, but there is an exception to the general rule for
communications that “relate to compensation for the expert’s
study or testimony.”
Fed. R. Civ. P. 26(b)(4)(C)(i).
While
this section does not include the phrase “in the case” as
section 26(a)(2)(b)(vi) does, the Advisory Committee’s note
clarifies that the exception to the general protection against
expert discovery extends to information relating to fees only in
the action at issue.
It states, “[Rule 26(b)(4)(C)(i)] is not
limited to compensation for work forming the opinions to be
expressed, but extends to all compensation for the study and
testimony provided in relation to the action.”
Fed. R. Civ. P.
26 advisory committee’s note (2010) (emphasis added).
Rule 26,
therefore, does not routinely require production of information
related to an expert’s compensation beyond the case at bar.
Allergan argues the information it seeks is relevant as
evidence of possible bias or prejudice.
It cites two cases in
which courts permitted counsel to ask experts at upcoming
depositions about the percentage of income that they derived on
an annual basis from providing expert witness services.
Sullivan v. Metro N. R.R. Co., No. 3:05CV665 AHN, 2007 WL
8327696, at *2 (D. Conn. Dec. 3, 2007); Behler v. Hanlon, 199
F.R.D. 553, 561 (D. Md. 2001).
However, these same courts noted
that document requests may become “overkill” and expressed
concern about the impact of broad discovery regarding experts’
financial information.
Id.
For example, the Sullivan court
explained that broad requests “may cause qualified experts in
future litigation to withhold their expertise for fear that
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opposing counsel will root around in their financial records,
searching for evidence of bias.”
2007 WL 8327696, at *2.
The
Behler court reasoned that most people are sensitive about their
income, and while there may be cases in which an expert’s gross
income and the specific amounts earned by providing services as
an expert witness may be discoverable, “this should not be
ordered routinely, without a showing, absent here, why less
intrusive financial information would not suffice.”
at 561.
199 F.R.D.
Permitting routine disclosure of the expert’s gross
compensation from all sources would provide little information
relevant to a fair assessment of the expert’s credibility but
would raise a meaningful risk of confusing or distracting the
jury.
Id.
Even if the Court were to agree that the information
Allergan seeks is relevant to bias impeachment “the mere fact
that such information falls within the scope of legitimate
discovery does not mean that parties are entitled to unfettered
discovery of impeaching information, by whatever means of
discovery they seek.”
Sullivan, 2007 WL 8327696, at *1.
Rule
26(b)(2) permits the Court to limit the extent of discovery if
it determines that it “is unreasonably cumulative or
duplicative, or can be obtained from some other sources that is
more convenient, less burdensome, or less expensive.”
Civ. P. 26(b)(2)(C)(i).
Fed. R.
The Court shares a concern that rooting
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around in experts’ personal financial information could deter
individuals with valuable knowledge and expertise from assisting
future juries.
Moreover, an expert’s potential bias may be
demonstrated through less intrusive means than producing
documentation of his or her entire financial universe.
Sullivan and Behler involved narrower requests for
information at a much earlier stage of discovery than the
present case and both courts did not grant the full scope of the
requests for documents.
Dr. Kessler has already provided
information regarding his compensation from other cases
involving Botox litigation and, in his deposition, he offered an
estimate of the percentage of his time spent on litigation
matters as opposed to other professional pursuits.
It would
unduly burden Dr. Kessler to require him to produce documents
sufficient to demonstrate his total income and the percentage of
his income derived from expert witness fees on the eve of trial
when Allergan already has significant evidence through which it
may raise the issue of bias with the jury.
However, if the
Court were to require Dr. Kessler to disclose this highly
personal information, Allergan’s expert witnesses should also be
required to make such disclosures.
This information is not
sufficiently probative to require such disclosures.
Accordingly, Allergan’s motion is denied.
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Dated at Burlington, in the District of Vermont, this 29th
day of October, 2014.
/s/ William K. Sessions III
William K. Sessions III
District Court Judge
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