Privilege Point summarized a case confirming non-testifying experts' general immunity from
discovery — absent "exceptional circumstances" such as destructive testing.
Ten days later, another court addressed discovery of what are called "dual
hat" experts — providing both consulting advice and testimony.
In Clark v. Quiros, prison officials sued by an inmate for
allegedly depriving her of medically necessary treatment retained a doctor
as a testifying expert, and also as a consulting expert "to advise
defendants on their prospective management and treatment of plaintiff."
Case No. 3:19-cv-575 (VLB), 2022 U.S. Dist. LEXIS 154800, at *2-3 (D. Conn.
Aug. 29, 2022). The court first acknowledged that non-testifying consulting
experts are "generally immune from discovery." Id. at *7 (citation
omitted). The court then noted that "for dual-hat experts, the privileges
that apply to consultant communications and work product only apply when
there is no overlap between the expert's consulting and
testifying roles." Id. at *25. Such experts thus may claim work
product protection "only over those materials generated or considered uniquely in the expert’s role as consultant." Id.
at *22-23 (citation omitted). After reviewing the "dual hat" expert's
documents in camera, the court found the necessary separation —
and protected the consultant-role documents.
It can be difficult enough to apply a non-testifying consulting expert's
"exceptional circumstances" standard, let alone deal with the added
complication of "dual hat" experts. Litigants considering such a risky
"dual hat" expert should carefully document the entirely separate nature of
the two roles.