Adams v. Shell Oil Co.

132 F.R.D. 437, 1990 U.S. Dist. LEXIS 12741
CourtDistrict Court, E.D. Louisiana
DecidedSeptember 26, 1990
DocketCiv. A. Nos. 88-1935, 88-2719
StatusPublished
Cited by39 cases

This text of 132 F.R.D. 437 (Adams v. Shell Oil Co.) is published on Counsel Stack Legal Research, covering District Court, E.D. Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Adams v. Shell Oil Co., 132 F.R.D. 437, 1990 U.S. Dist. LEXIS 12741 (E.D. La. 1990).

Opinion

ORDER AND REASONS

MENTZ, District Judge.

The court addresses here the plaintiffs’ request for discovery of the defendant’s experts. The defense experts include some who are expected to testify at trial and some who are not expected to testify at trial. The court finds that while discovery of experts expected to testify at trial is premature, the plaintiffs are not entitled to any discovery of experts not expected to testify at trial.

Facts

On May 5, 1988, the catalytic cracking unit (CCU) at the Shell Oil Refinery, Norco, Louisiana, exploded. The first of several suits ultimately certified as a class action was filed that day. The day after the explosion, the parties entered an agreement giving the Plaintiff’s Legal Committee (PLC) and its experts access to the CCU to inspect, measure, and photograph. See Transcript attached to Rec.Doc. # 4a; Consent Agreement, Rec.Doc. # 6; and Consent Agreement, Rec.Doc. # 7. Following their agreement, Shell Oil Company (Shell) preserved all materials tagged by the PLC, as well as additional materials Shell wanted preserved.

Later, Shell conducted at its research facility metallurgical and chemical tests 1 on material removed from the explosion site. R.E. Nordstrom and Paul A. Nelson are two Shell employees who were present during the testing. The PLC’s experts observed certain of these tests.

From the beginning of this case, both the PLC and Shell retained experts and actively investigated the cause of the explosion. Three months post-explosion, the court ordered: “Any expert who has visited the NORCO plant and will be an expert witness at trial shall submit a preliminary report to the court on Friday, September 23, 1988.” Shell submitted five reports: two from its in-house employees, R.E. Nordstrom and Paul A. Nelson; one from Failure Analysis Associates; one from Arthur D. Little, Inc.; and one from Hercules, Inc. The PLC submitted three expert reports: one from C H & A Engineering Group; one from Metallurgical & Materials Technologies, Inc.; and one from Perez Architects. The parties did not exchange the preliminary expert reports until later, in April, 1989.

During course of this litigation, the PLC filed several motions seeking expert discovery, particularly the identity of Shell’s experts and the results of the tests conducted by Shell on the CCU material. In each instance, the court ruled against allowing the discovery, unless Shell intended to use the expert or test result at trial. See Minute Entry entered October 18, 1988 (Interrogatories 8, 9) Rec.Doc. # 274; Minute Entry entered November 4, 1988, Rec. Doc. # 309; Minute Entry entered January 31, 1989, p. 2, Rec.Doc. # 441; Minute Entry entered August 22, 1989, Rec.Doc. #807.

. Before the court is the PLC’s Motion for Reconsideration of the Court’s August 21, [440]*4401989 Ruling. Specifically, the PLC seeks the results of tests conducted by Shell on material from the CCU and leave of court to depose the authors of the preliminary expert reports.2 Shell states that it has not yet decided which test results and experts it intends to use at trial. Shell also states that it does not intend to call Nordstrom and Nelson at trial or to use either of their preliminary expert reports.

Experts Expected to be Called at Trial

Although Fed.R.Civ.P. 26(b)(4)(A) allows for interrogatory discovery of experts expected to be called at trial, the court has discretion in this complex class action to control the sequence of discovery. See Fed.R.Civ.P. 26(b)(1). The Case Management Order (CMO), adopted by the court on August 13, 1990, governs the time frame for discovery of experts. See Rec.Doc. # 1140, 1149. Under the CMO, the parties need not disclose the identity of experts expected to be called at trial until March 1, 1991. The exchange of expert reports is May 1, 1991 and expert depositions start on June 15, 1991. At this time, Shell has no obligation to decide which experts it will call at trial or disclose information about any experts expected to be called at trial. As stated in the Advisory Committee Notes to Rule 26:

The procedure established in subsection (b)(4)(A) holds the risk [that one side will benefit unduly from the other side’s better preparation] to a minimum. Discovery is limited to trial witnesses, and may be obtained only at a time when the parties know who their expert will be. A party must as a practical matter prepare his own case in advance of that time, for he can hardly hope to build his case out of his opponent’s expertise. (Emphasis added).

Those who will testify at trial often cannot be identified until the later stages of litigation. See United States v. 215.7 Acres of Land, 719 F.Supp. 273, 278 (D.Del.1989) (tacit approval of the government’s posture of indecision about what experts would be called at trial). Therefore, the court finds that the PLC’s attempt to obtain discovery from experts expected to be called at trial is premature.3

Experts Not Expected to be . Called at Trial

Under Fed.R.Civ.P. 26(b)(4)(B), the facts known and opinions held by non-testifying experts who are retained or specially employed in anticipation of litigation or preparation for trial are subject to discovery only in exceptional circumstances. This Rule recognizes that with non-testifying experts, there is no need to obtain discovery for effective cross-examination. 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.”) The Rule is also designed to prevent a party from building his case on the diligent preparation of his adversary. See Pielemeier, Discovery of Non-Testifying ‘In-House’ Experts Under Federal Rules of Civil Procedure, 58 Ind.L.J. 597, 607-08 (1984).

Shell has stated its intention not to call at trial its in-house experts, Nordstrom and Nelson. No one disputes that Nordstrom and Nelson are experts. Even though Shell submitted the reports of Nordstrom and Nelson as preliminary reports of experts it expected to call at trial, Shell’s later decision not to call them at trial is permissible. Prior to the court imposed deadline for exchange of witness lists, a party is free to make strategic decisions changing an anticipated witness to a non-witness. See Eliasen v. Hamilton, 111 F.R.D. 396, 401 (N.D.Ill.1986); Mantolete v. Bolger, 96 F.R.D. 179, 182 n. 2 (D.Ariz.1982). Thus, Nordstrom and Nel[441]*441son are properly designated as non-testifying experts.

The PLC maintains that Nordstrom and Nelson should be treated as ordinary witnesses under Fed.R.Civ.P. 26

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Cite This Page — Counsel Stack

Bluebook (online)
132 F.R.D. 437, 1990 U.S. Dist. LEXIS 12741, Counsel Stack Legal Research, https://law.counselstack.com/opinion/adams-v-shell-oil-co-laed-1990.