Ager v. Jane C. Stormont Hospital & Training School
622 F.2d 496 (10th Cir. 1980)
Agar was severely and
permanently injured during birth. She sued the hospital and the medical
staff for negligence.
During discovery, one of the
defendants, Dr. Tappen, sent an interrogatory to the plaintiff basically asking whether or
not they had hired an expert witness, and if so, what that witness said. Agar objected to the interrogatory.
Tappen filed a motion for an
order to compel delivery, under Rule 37(a). The magistrate ordered Agar to answer.
Agar answered, but did not
provide information on potential expert witnesses that they consulted,
but who they did not intend to call at trial. Agar only provided
information on witnesses they intended to actually use.
The magistrate once again
ordered Agar to fully disclose all the information requested in the interrogatory. Agar objected, but a Court ordered
compliance. Agar's lawyer refused and was arrested for contempt. Agar appealed.
The lawyer probably wanted a
citation for contempt. Normally,
you cannot appeal a decision until the entire case has been settled, but
since discovery occurs so early in the litigation process, it would be
better to get the final decision out of the way immediately. Since contempt citations are considered a separate
proceeding, they are immediately appealable.
The Appellate Court reversed
the finding of contempt.
The Appellate Court looked to Rule 26(b)(4)(B) specifically deals with expert witnesses,
and says that there can be no discovery against experts who were
informally consulted, but not retained or specially employed.
The Court reasoned that if
one party found out about the opposing party consulting with, but not
using, an expert witness, they
could use that information against them.
The assumption is that if
you don't use an expert witness
you've consulted, then it must be because they are saying things that
don't support your side of the case.
The Court found
that, if the expert witness was
not retained, then discovery was barred. If the expert witness had been retained, but there was no intention
to use them in the trial, then discovery would be barred unless exceptional
circumstances could be shown.