Delcastor, Inc. v. Vail Assocs., Inc.

108 F.R.D. 405, 3 Fed. R. Serv. 3d 1061, 1985 U.S. Dist. LEXIS 12992
CourtDistrict Court, D. Colorado
DecidedDecember 9, 1985
DocketCiv. Nos. 84-K-1819 consolidated with 85-K-624
StatusPublished
Cited by21 cases

This text of 108 F.R.D. 405 (Delcastor, Inc. v. Vail Assocs., Inc.) is published on Counsel Stack Legal Research, covering District Court, D. Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Delcastor, Inc. v. Vail Assocs., Inc., 108 F.R.D. 405, 3 Fed. R. Serv. 3d 1061, 1985 U.S. Dist. LEXIS 12992 (D. Colo. 1985).

Opinion

MEMORANDUM OPINION AND ORDER

KANE, District Judge.

In this diversity action, Plaintiff Rephidim asks me to reconsider, pursuant to Local Rule 602(c), Magistrate Clifton’s denial of its Federal Rule of Civil Procedure 37 motion to compel discovery. For the reasons set forth below, Rephidim’s motion to compel discovery is granted.

On May 16, 1984 a mudslide occurred near Vail, Colorado. The following morning, engineering consultant Dr. Nicholas Lampiris investigated the mudslide at the behest of the defendant Vail. On July 13, 1984 Dr. Lampiris produced a report containing his observation of the scarp and certain drainage ditches in the area. This report also contains Dr. Lampiris’s opinions as to the slide’s cause. Rephidim seeks to discover this report and to depose Dr. Lampiris as to its contents.

Fed.R.Civ.P. 26(b)(4)1 sets forth the conditions upon which facts known and opinions held by an expert, such as Dr. Lampiris, may be discovered. The federal rules basically divide experts into those who will testify at trial, 26(b)(4)(A), and those who, though retained in anticipation of litigation, will not testify at trial, 26(b)(4)(B). The substance of the facts and opinions, (and the grounds for the opinions), to which an expert is expected to testify are necessarily discoverable. The facts and opinions of non-testifying experts are discoverable only upon a showing of exceptional circumstances.

Defendant Vail is going to call Dr. Lampiris as a witness, but only with respect to his observations of the mudslide terrain and proximate drainage ditches following the morning of the slide. Vail has offered these facts for discovery. Dr. Lampiris will not testify as to his opinion regarding the cause of the slide which is contained in his July 13 report.

The threshold issue is whether, for the purpose for which Rephidim seeks to discover this report, Dr. Lampiris falls within the category of experts expected to testify at trial, (A), or that of experts not testifying, (B).

[408]*408I hold that Dr. Lampiris is an (A) expert, whose facts and opinions are necessarily discoverable, despite Vail’s attempts to limit his testimony at trial to facts only. In Boring v. Keller, 97 F.D.R. 404, 407 (D.Colo.1983), I noted that “26(b)(4) provides that a party may discover ‘facts known and opinions held by experts’ so that a party may prepare for cross examination and impeachment of any witness. Generally, courts have construed discovery rules liberally”. (Emphasis added.)

In the present case, effective cross-examination of Dr. Lampiris’ testimony regarding “facts” surrounding the mudslide requires discovery of his “opinion” as to its cause. The reasonableness, consistency and credibility of Dr. Lampiris’ “facts” testimony may be effected by his opinions. This is especially the case when the “facts” are based partially on subjective observations and are, therefore, to a degree, tainted by Dr. Lampiris’ opinions regarding causation. When Dr. Lampiris observed the facts surrounding the slide, his opinions as to its cause most likely influenced his judgment. The fact/opinion distinction is unclear; any fact testimony impliedly contains opinion testimony. Vail will not be permitted to create the illusion of a distinction between types of testimony in order to frustrate Rephidim’s discovery of the “facts and opinions” held by its expert.

Moreover, if we assume that Dr. Lampiris is now merely a “fact witness”, his opinions are properly discoverable under ordinary discovery practices because those opinions appear reasonably calculated to lead to the discovery of admissible evidence. See F.R.Civ.P. 26(b). The protections afforded by 26(b)(4)(B) were never intended to shield a witness from full and fair examination. Rather, the Rule was intended to prevent an advisor from becoming an involuntary witness.

The Lampiris report is also necessary for the effective cross-examination and impeachment of another of Vail’s expert witnesses. Dr. James Cording is expected to testify for Vail on the cause of the mudslide. There is evidence before me that Dr. Cording, whether purposely or inadvertantly, was given a complete copy of the Lampiris report. In deposition, Dr. Cording acknowledged that he had read the report and relied upon it to arrive at his own conclusion regarding the cause of the mudslide. Vail asserts that Dr. Cording only generally, as opposed to specifically, relied on the Lampiris report and other documents in reaching his conclusions. This “general v. specific” distinction is meaningless. If Dr. Cording has used the Lampiris report at all in formulating his opinions, effective cross-examination of him requires that Rephidim have access to that report.

My compelling discovery of this report is consistent with Magistrate Clifton’s ruling below which, though reconsidered largely because of the recent illumination of certain facts, correctly states that:

If any expert witness that will be called at trial has grounded his opinion in part on information provided by Dr. Lampiris, Rephadim is, of course, thereby provided with a different avenue to discover the disputed information.

Magistrate’s Discovery Order, October 28, 1985. In Heitmann v. Concrete Pipe Machinery, 98 F.R.D. 740 (E.D.Mo.1983), it was held that a report of a non-testifying expert which was prepared in anticipation of litigation, was subject to discovery by plaintiff where the report was needed for effective cross examination of a testifying expert who relied upon the report in reaching his opinion.

Even if, as Vail argues, discovery as a matter of right per 26(b)(4)(A) is limited to the facts and opinions to which Lampiris is expected to testify, the report is still discoverable. Rephidim has demonstrated that exceptional circumstances justifying discovery do exist. Rephidim asserts that The most obvious “exceptional circumstance” is that Dr. Lampiris was able to inspect the site on May 17, 1984, just one day after the event. By the time that Mr. Mears (another expert) was able to conduct a site investigation 5 days had [409]*409elapsed and site conditions had changed considerably, due not only to the unseasonably warm temperatures which had effected the amount of snow melt and sheet runoff but also due to human activities in and around the ditch and the mudslide scarp. Mr. Mears is unable to further refine his general conclusions regarding the relative contribution of water from the ditch, due, in part, to the lack of information regarding the actual site conditions at the time of the slides. None of the experts who have been endorsed has had an opportunity comparable to Dr. Lampiris’ to investigate the site before its condition had been drastically altered. Those site conditions, of course, cannot now be reconstructed and the testifying experts must rely on their post hoc rationalizations as to what those conditions were. It is impracticable for Rephidim to discover information equivalent to the observations, opinion and conclusions of Dr. Lampiris, who, presumably, is specially trained to observe the geotechnical features of the site and whose investigations were conducted before the site conditions were substantially changed.

Plaintiff’s Brief on Motion to Reconsider, October 4, 1985. (Paranthetical phrase added.)

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Bluebook (online)
108 F.R.D. 405, 3 Fed. R. Serv. 3d 1061, 1985 U.S. Dist. LEXIS 12992, Counsel Stack Legal Research, https://law.counselstack.com/opinion/delcastor-inc-v-vail-assocs-inc-cod-1985.