Litigants sometimes regret their designations of testifying experts, and want to remove the designation—often because the expert turns out not to be as helpful as originally anticipated. In that event, does the expert become a non-testifying expert, and therefore available for discovery only under the “exceptional circumstances” standard of Fed. R. Civ. P. 26(b)(4)(B)?
Some courts allow a party to withdraw an expert from the trial witness list, thereby shifting the discovery analysis to the “exceptional circumstances” standard that applies to non-testifying experts. Callaway Golf Co. v. Dunlop Slazenger Group Americas, Inc., No. 01-669-###(MPT), 2002 U.S. Dist. LEXIS 15429 (D. Del. Aug. 14, 2002). Other courts take the opposite approach, as discussed in FMC Corp. v. Vendo Co., 196 F. Supp. 2d 1023 (E.D. Cal. 2002) (ultimately using the “exceptional circumstances” standard, but noting the vigorous debate among courts nationwide on this issue).
Lawyers whose experts do not turn out as well as initially expected should become familiar with this debate, which could save their clients the embarrassment (or worse) of having an adversary conduct discovery of experts who have changed their minds and now support the adversary’s position.