Kurt West v. Bell Helicopter Textron, Inc., Goodrich Pump and Engine Control Systems, Inc., and Rolls-Royce Corp.

2017 DNH 215

• Court: District Court, D. New Hampshire
• Decided: October 25, 2017
• Docket: Civil No. 10-cv-214-JL
• Status: Published

Opinion

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

1 See Proposed Discovery Plan (doc. no. 504); Order of June 2, 2017 (doc. no. 505). 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). Here, Millar has been identified

as an expert witness. 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deposition of withdrawn expert who had already issued reports);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depose withdrawn expert whose earlier opinions were introduced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 But he did and, having done so, may now be deposed anew

2 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: October 4, 2017

cc: 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.

3 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. 4 Document no. 532.