Coates v. AC&S, Inc. – Case Brief
Coates v. AC&S, Inc., 133 F.R.D. 109 (E.D. La. 1990).
Facts: Charles Coates allegedly died from peritoneal mesothelioma. Tissue samples were taken and sent to both Coates’ and AC&S’s experts. AC&S designated the experts receiving the samples pursuant to FRCP 26(b)(4)(B) as experts retained in anticipation of litigation, but who would not testify at trial.
The court issued an order to curtail the ‘shopping’ of expert opinions by requiring all parties to file into the record the names and addresses of anyone to whom such tissue samples were sent. Coates sought to depose the experts or to obtain copies of all written reports, including the results of all tests made and all conclusions. Ds opposed the motion on the grounds that Rule 26(b)(4)(B) does not permit discovery of the opinions of experts who will not be called to testify at trial.
Issue: Does the term “exceptional circumstances” in Rule 26(b)(4)(B) include circumstances under which it is impracticable for either side to obtain information related to tests performed on the tissue of a deceased person by other means?
Holding and Rule: Yes. The court held that in this case, because it was impracticable for either side to obtain information by other means related to tests performed on human tissue from a party who had allegedly died of peritoneal mesothelioma, the facts fall within the exceptional circumstances contemplated by Rule 26(b)(4)(B).
The court was of the opinion that expert testimony ‘shopping’ continues to take place and that such ‘shopping’ was sufficient to include such evidence within the Rule’s “exceptional circumstances” exception. The goal of litigation should be to seek the ultimate truth at issue in the matter (See Hickman v. Taylor). Due to the difficulty in diagnosing mesothelioma, the fact finder is entitled to know the extent of any disagreement of those whom a plaintiff or defendant has employed.
The court reasoned that by analogy, Rule 35(b) provides support for the Court’s decision to permit the discovery sought because if an autopsy had been performed pursuant to Rule 35(a), then under Rule 35(b), each participating doctor would be required to disclose his conclusions. The court reasoned that the fact that discovery in this matter was conducted by sending tissue samples rather than by autopsy should not dictate whether the findings of the participating doctors should be revealed.
Disposition: For P.
Notes: Expert testimony is merely testimony for hire in many cases. Often one can find an expert to say anything about anything for a price; therefore allowing “exceptional circumstances” to include such situations to reduce the abuse of expert testimony shopping is beneficial.