Expert witness

Case: Chiquita International Ltd. v. M/V Bolero Reefer (1994; SD NY) [CB 448-
451]

Facts: Chiquita hires Reefer to ship their bananas. Reefer lost some bananas,
and others spoiled on the ship on the trip. Chiquita sues and gets a non-
testifying expert, a marine engineer, to examine the cargo loss claim. Reefer then
tries to get the expert's testimony (by deposition). Chiquita says the testimony
is not discoverable under Rule 26(b)(4)(B) because he is not testifying at trial.

Issue: Whether a deposition testimony by a nontestifying witness is

discoverable. - No.

Holding: The deposition is not discoverable b/c expert is a non-testifying

witness. However, document discovery is not exempt b/c of this. Court says the
recorded observations and opinions of the expert are discoverable.

Reasoning:
§ Pl argues that under Rule 26(b)(4)(B), the expert testimony is not
discoverable b/c he is a non-testifying witness
§ Court says expert falls in this category. He was hired, as an expert,
to conduct the investigation in preparation for the litigation.
§ This is different from a witness whose information was obtained
in the normal course of business
§ Ex: medical examiner subject to ordinary discovery on
routine autopsy.
§ Dfs argues:
§ Under the exceptional circumstances clause of Rule 26, discovery
should be permitted because no other marine surveyor viewed the vessel shortly
after docking. This would be ok if Df was precluded from getting this info
themselves.
§ But, the ship was completely in their control, they knew there
was going to be a problem, and they chose not to do the investigation
§ There was nothing that barred Dfs to do the investigation
themselves
□ If you grant discovery in that kind of case, then
you’re ruining the incentive structure – giving people perverse incentives not to
investigate
§ Df also says that even if it is foreclosed from deposing the witness,
it should be given access to his file.
§ Rule 26(b)(4)(B) also applies to document discovery.
Information does not become exempt from discovery just because its conveyed by a
non-testifying witness.

Rule: The failure of a party to engage its own expert in a timely manner shall not
be rewarded by permitting discovery of the opposing party's expert.

Notes and Problems: [CB 450]

§ Weighing the cons of compelling an expert to be called at trial with the
benefit of an overall search for truth.
§ Cons:
§ Interest in allowing counsel to obtain expert advice without
fear that every consultation will give the opponent a potential source of
advantage
§ It would be unfair to allow one party to benefit from the
efforts and expense incurred by the other in preparing a case
§ Allowing compulsion may deter experts from serving as
consultants - they may not want to go to trial
§ It might entail a risk of prejudice