Opinion
Civ. No. 99-3254, c/w 99-3332, SECTION "R" (4).
January 18, 2001.
ORDER AND REASONS
Before the Court is defendants' objection to the ruling of the Magistrate Judge quashing a subpoena. For the reasons stated below, the Court affirms the Magistrate Judge's decision to quash the subpoena.
I. BACKGROUND
This wrongful death and personal injury case arises from a casualty involving a manhole cover assembly manufactured by defendant Nabrico. On September 26, 1998, the manhole cover blew out during the air pressure testing of a compartment in a tug boat that was being constructed by Hope Services. This blow out killed Ken Michael Crews, husband of plaintiff Angelina Crews, and injured Joseph Billiot, also a plaintiff along with his wife Mary Billiot. Crews and Billiot were Hope employees working on the deck of the tug boat at the time of the incident. Shortly after the accident, Hope's worker's compensation insurer, Eagle Pacific Insurance Company, engaged counsel to investigate the accident. Counsel hired Dr. Courtney Busch of Busch Associates, Inc., as an expert in the field of metallurgy as a consultant.
On October 22, 1998, Dr. Busch examined the vessel and equipment at issue. Hope had resumed work on the vessel since the September 26, 1998 accident. As a result, Dr. Busch's visit was limited to interviewing Hope personnel regarding the method and equipment used for the pressure testing. Eagle claims that the lines, valves, manifolds, and other testing equipment were available for inspection by Dr. Busch but they were not in the same location as they were at the time of the accident because they had been moved following the casualty.
On November 1, 2000, Nabrico served subpoenas on Dr. Busch and Busch Associates, Inc., asking Dr. Busch to produce all materials in his possession generated in connection with his inspection and consulting work on behalf of Eagle and/or Hope Services. In response, Eagle filed a motion to quash, arguing that Rule 26(b)(4)(B) of the Federal Rules of Civil Procedure protects the contents of Dr. Busch's files from discovery because he was retained as a consulting expert only and will not testify at trial.
The Magistrate Judge granted the motion to quash in a telephone conference on November 17, 2000 and issued a minute entry to this effect dated December 18, 2000. Nabrico attacks the Magistrate Judge's ruling, arguing that it should be set aside because exceptional circumstances exist that make it impracticable to obtain the same facts that Dr. Busch possesses by other means.
II. STANDARD OF REVIEW
In accordance with Rule 72(a) of the Federal Rules of Civil Procedure, the motion to which the plaintiff's objections apply was properly referred to the Magistrate Judge. The Court may set aside the Magistrate Judge's order only if it is "found to be clearly erroneous or contrary to law." Fed R. Civ. P. 72(a); see also United States v. Wilson, 864 F.2d 1219 (5th Cir. 1989).
III. DISCUSSION
Rule 26(b)(4)(B) of the Federal Rules of Civil Procedure provides that a non-testifying expert witness may be deposed "upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means." This Rule recognizes that there is no need to obtain discovery from a non-testifying expert for effective cross-examination because the expert will not testify. See 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 effective cross-examination."). A party seeking to show exceptional circumstances under Rule 26(b)(4)(B) carries a heavy burden. See Hoover v. United States Dep't of the Interior, 611 F.2d 1132, 1142 n. 13 (5th Cir. 1980). The exceptional circumstances requirement has been interpreted by the courts to mean an inability to obtain equivalent information from other sources. See Candebat v. Zimmer, Inc., 1990 WL 43922, No. 89-659 (E.D. La. April 6, 1990); Sabido v. ANR Freight System, Inc., 1988 WL 58408, No. 87-5662 (E.D. La. May 31, 1988).
Nabrico argues that such exceptional circumstances exist in this case. Nabrico cites Delcastor, Inc. v. Vail Assocs., Inc., 108 F.R.D. 405 (D. Col. 1985), to support its argument. Delcastor, however, is distinguishable from this case. In Delcastor, an engineering consultant investigated a mudslide at the request of the defendant on the morning after the mudslide. The expert conducted his examination before the terrain changed and generated a report including his observations of the landscape at the time of the inspection and his opinions as to the causes of the slide. The defendant announced its intention to call the expert only as a fact witness to testify about his observations of the terrain. Defendant did not intend to call the expert to testify about his opinions regarding the slide's cause. Plaintiff moved to compel discovery of the expert's report and to depose him. The district court held that the expert's facts and opinions were discoverable under F.R.C.P. 26(b)(4) (A), or alternatively, the report was discoverable because plaintiff had demonstrated exceptional circumstances. The court found that because no other expert had been able to view the site until five days later, and because weather and human activities had altered the conditions of the site, none of the other experts had an opportunity to investigate comparable to the expert in question. Therefore, the court found that exceptional circumstances justified permitting discovery of the non-testifying expert's opinion because the condition he observed was not observable by the plaintiff's experts.
Unlike the expert in Delcastor, Dr. Busch was not able to observe the accident site immediately following the accident or before the site conditions had changed. Dr. Busch did not visit the accident site until nearly a month after the accident and the equipment had been moved. Also unlike the expert in Del castor, Dr. Busch is not a listed witness of any party, expert or otherwise.
Because Nabrico will have access to information regarding the site conditions through depositions of fact witnesses, physical inspection, and photographs, Nabrico has failed to demonstrate that it cannot practicably obtain the information Dr. Busch from other sources. Nabrico has been able to depose several Hope employees who were at the site on the day of the accident. In addition, Nabrico possesses copies of photographs of the vessel and testing equipment taken within hours of the accident. Therefore, the Magistrate Judge's ruling granting the motion to quash was correct.
IV. CONCLUSION
For the reasons stated, defendant's motion to set aside the Magistrate Judge's ruling is DENIED.
New Orleans, Louisiana, this 18th day of January, 2001.