United States District Court, D. Connecticut
RULING ON DEFENDANT'S MOTION IN LIMINE REGARDING TESTIMONY OF DR. SELDEN
Janet Bond Arterton, U.S.D.J.
Defendant Metro-North Commuter Railroad Company ("Metro-North") moves [Doc. # 22] in limine to preclude Plaintiff Natalie Anderson from offering the testimony of Dr. Steven Selden, an expert retained by Defendant for the purpose of conducting an independent medical examination ("IME") of Plaintiff. Plaintiff opposes Defendant's motion. For the following reasons. Defendant's motion in limine is denied.
This case was filed on April 7, 2014. On January 7, 2016, Plaintiff disclosed Dr. David Bomback, an orthopedic surgeon, as a treating expert expected to testify at trial. (See Ex. 2 to Mot. in Limine re Selden.) Defendant then arranged for Dr. Steven Selden, also an orthopedic surgeon, to conduct an IME of Ms. Anderson on February 4, 2016. (Mot. in Limine re Selden at 2.) Thereafter, on February 10, 2016, Metro-North disclosed Dr. Selden as an expert witness and served his report pursuant to Fed.R.Civ.P. 26(b)(4)(A). (Id.)
On March 12, 2016, Plaintiff also disclosed Dr. Selden as her own expert. (See Ex. 1 to Mot. in Limine re Selden.) In the parties' April 18, 2016 Joint Trial Memorandum, however, only Plaintiff listed Dr. Selden as a witness.
Defendant's motion in limine and subsequent briefing raises three issues with respect to Dr. Selden: (1) preliminarily, the standard to be applied in determining whether a plaintiff may offer the testimony of an expert initially designated as a testifying expert by the defendant but whose designation was withdrawn prior to trial but after the disclosure of the expert's report; (2) whether, applying that standard, Plaintiff should be permitted to call Dr. Selden at trial; and (3) whether, irrespective of the Court's ruling as to Dr. Selden's testimony, Dr. Selden's report is admissible. The Court addresses these issues in turn.
A. Standard to be Applied
As Defendant notes, courts around the country are divided on the answer to the question of what standard to apply in determining the admissibility of testimony by an opposing party's designated expert whom the opposing party decides, before trial, not to call at trial. Three general trends have emerged.
A minority of courts have held that a party subjected to examination by an expert under Federal Rule of Civil Procedure 35 has a right to call that expert as a witness, regardless of whether the party that designated the expert intends to do so. See, e.g., Crowe v. Nivivson, 145 F.R.D. 657, 658 (D. Md. 1993). The Crowe court reasoned that "Rule 35 balances the privacy interests of the party examined with the interest of the party seeking examination, the judicial system, and society as a whole in arriving at the truth of the matter at issue. In return for suffering an invasion of his person, the examined party is entitled to make use of such information as results from the examination." Id. Few courts have, however, followed the Crowe court's lead in creating a per se rule with respect to expert examiners' testimony, and indeed, neither party here asks the Court to adopt the Crowe rule.
A second trend, which Defendant urges the Court to follow, is that Federal Rule of Civil Procedure 26(b)(4)(D) governs this issue. See, e.g., Durflinger v. Artiles, 727 F.2d 888, 891 (10th Cir. 1984) (applying Rule 26(b)(4)(D) to determine if one party could call an expert witness designated by the other party, whose designation that party subsequently withdrew); R.C. Olmstead, Inc. v. CU Interface, LLC, 657 F.Supp.2d 899, 904 (N.D. Ohio 2009) (applying Rule 26(b)(4)(D) to determine if one party could depose an expert witness designated by the other party, whose designation that party subsequently withdrew); Carroll v. Praxair, Inc., No. 05-0307, 2007 WL 437697, at *2 (W.D. La. Feb. 7, 2007) (same); Netjumper Software, LLC v. Google, Inc., No. 04-70366CV, 2005 WL 3046271, at *3 (S.D.N.Y. Nov. 10, 2005) (same); Lehan v. Ambassador Programs, Inc., 190 F.R.D. 670, 672 (E.D. Wash. 2000) (applying Rule 26(b)(4)(D) to determine if one party could call an expert witness designated by the other party, whose designation that party subsequently withdrew). Under that Rule,
[o]rdinarily, a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial. But a party may do so only:
(i) as provided in Rule 35(b); or
(ii) on showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on ...