Larson v. Davidson Trucking Inc

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

TERRY LARSON and JAYNE LARSON, )

)

Plaintiff, )

)

v. ) CAUSE NO.: 2:20-CV-250-PPS-JEM

)

DAVIDSON TRUCKING, INC., and GARY )

EIDT, individually and as an employee, of )

DAVIDSON TRUCKING, INC., )

)

Defendants. )

OPINION AND ORDER

This matter arises from an automobile accident in Valparaiso where one of the

Plaintiffs, Terry Larson, sustained serious injury. His wife, Jayne, also seeks damages

for a loss of consortium but we can ignore her claim for now. The issue presently before

me requires an analysis of the interplay between Rule 26 and Rule 35 of the Federal

Rules of Civil Procedure. In particular, Defendants seek to compel the deposition of

Larson’s consulting medical examiner. [DE 41]. The Defendants say that Rule 35

commands the deposition be taken; Larson responds that Rule 26 controls the matter

and prohibits the deposition. For the reasons outlined below, I agree with Larson and

will therefore deny the motion to compel.

Background

A. The Parties’ Contentions

Defendants’ motion concerns the taking of two expert depositions. Dr. Douglas

Gibson, Defendants’ testifying expert, conducted a medical examination on Larson. The

saga began when Larson sought to depose Dr. Gibson. Larson argues—and Defendants

do not dispute—that Larson has the right to depose Dr. Gibson as a testifying expert.

FED. R. CIV. P. 26(b)(4)(A). But if Larson does depose Dr. Gibson, then, according to the

Defendants, they are entitled to depose Dr. Steven Rothke, a consulting

neuropsychologist who Plaintiff does not intend to call as a witness at trial but who also

performed an examination on Larson. This is Defendants third bite at the Rothke apple.

On two other occasions the Defendants sought discovery from Dr. Rothke, but those

attempts were rebuffed by then Magistrate Judge Kolar. [DE 35, 38]. Familiarity with

Judge Kolar’s comprehensive opinions on the subject is assumed here.

Larson objects to a deposition of Dr. Rothke, citing Federal Rule of Civil

Procedure 26(b)(4)(D):

Ordinarily, 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.

FED. R. CIV. P. 26(b)(4)(D).

There are two exceptions to the prohibition on taking discovery from a

consulting expert: 1) when it is permitted by Rule 35(b), FED. R. CIV. P. 26(b)(4)(D)(i);

and 2) if there are “exceptional circumstances under which it is impracticable for the

party to obtain facts or opinions on the same subject by other means,” FED. R. CIV. P.

26(b)(4)(D)(ii). Defendants assert that a deposition of Dr. Rothke falls under both

exceptions.

Defendants tell me that taking Dr. Rothke’s deposition is permitted under the

(D)(i) exception because his deposition is permitted by Rule 35(b)(4). That provision

states:

By requesting and obtaining the examiner’s report, or by

deposing the examiner, the party examined waives any

privilege it may have—in that action or any other action

involving the same controversy—concerning testimony

about all examinations of the same condition.

FED. R. CIV. P. 35(b)(4) (emphasis added). According to Defendants, Rule 26(b)(4)(D)(i)

and Rule 35(b)(4) together provide that, by choosing to depose Dr. Gibson, Larson

waives the consulting expert protection in Rule 26 for Dr. Rothke.

Larson rejects Defendants’ Rule 35(b)(4) waiver argument, pointing out that the

last sentence in subsection (b)(6) of Rule 35 states that “[t]his subdivision does not

preclude obtaining an examiner’s report or deposing an examiner under other rules.”

FED. R. CIV. P. 35(b)(6). The Advisory Committee Notes to Rule 35 state that the

language “does not preclude” in subsection (b)(6) was added to make clear that Rule

35(b) “is not preemptive” of other discovery rules. See FED. R. CIV. P. 35(b)(6), 1970

Amendment to Subdivision (b)(3).1 This means, according to Larson, he is allowed to

depose Dr. Gibson under Rule 26(b)(4)(A) without triggering either the (D)(i) exception

in Rule 26(b)(4)(D) or the waiver principle in Rule 35(b)(4).

B. The Previous Motion to Compel a Report from Dr. Rothke

As noted above, former Magistrate Judge Kolar was presiding over discovery in

this matter when the parties’ dispute over Dr. Rothke first erupted. Dr. Rothke was

1 The current subsection (b)(6) was originally codified in subsection (b)(3) of Rule 35.

originally a retained expert, but he was later redesignated a consulting expert.

Everybody agrees that Dr. Rothke examined Larson but did not issue a report. Shortly

after Dr. Rothke’s redesignation as a consulting expert, Defendants sought to compel

Dr. Rothke to produce a report of his medical examination. Magistrate Judge Kolar

denied that motion. [DE 35]. Defendants then filed a motion for reconsideration, which

Magistrate Judge Kolar also denied. [DE 38]. Defendants did not appeal either of

Magistrate Judge Kolar’s decisions to me. So, the ship has sailed on those issues.

I expected that the current motion would make arguments based solely on the

second clause of Rule 35(b)(4) “by deposing the examiner.” Indeed, Defendants start off

their motion by suggesting they intend to do just that. See [DE 41 at 6 (Defendants state

they “understand and appreciate” Magistrate Judge Kolar’s prior rulings denying their

motion to compel an examiner’s report but assert that they “seek to distinguish” those

prior rulings)]. But the report requirement in Rule 35 still plays a large role in the

parties’ analysis of the deposition issue. So it makes sense to take a moment at the start

to review Defendants’ arguments and Magistrate Judge Kolar’s analysis of those

arguments on the report issue.

Defendants’ arguments for their motion to compel a report were similar to their

current arguments seeking to compel a deposition. Defendants claimed they were

entitled to an expert report from Dr. Rothke because Larson had requested and

obtained Dr. Gibson’s report under Rule 35(b)(1). By obtaining Dr. Gibson’s report,

Defendants argued, Larson triggered the reciprocity principle in Rule 35(b)(3) which

states that after “delivering the [examiner’s] report[], the party who moved for the

examination may request—and is entitled to receive—from the party against whom the

examination order was issued like reports of all earlier or later examinations of the same

condition.” Id. Defendants also cited the waiver of privilege in Rule 35(b)(4), which is

triggered both “by requesting and obtaining the examiner’s report,” and “by deposing

the examiner.” FED. R. CIV. P. 35(b)(4). Defendants contended that, even though

Dr. Rothke was designated a consulting expert, the (D)(i) exception in Rule 26(b)(4)(D)

applied because Rules 35(b)(1), (b)(3), and (b)(4) required Dr. Rothke to prepare and

deliver a report of his examination results.

In rejecting these arguments, Magistrate Judge Kolar held that the reciprocity

requirement in Rule 35(b)(3) is dependent on Larson first having made a request for a

report by Defendants’ examiner (Dr. Gibson) pursuant to Rule 35(b)(1). Judge Kolar

found that Larson did not obtain a copy of Dr. Gibson’s examination report by making

a Rule 35(b)(1) “request”; instead, he was served with that report pursuant to the expert

discovery requirements in Rule 26(a)(2) for retained testifying experts. Magistrate Judge

Kolar also held that the last sentence of subsection (b)(6) of Rule 35 confirmed that

Larson was entitled to invoke Rule 26(a)(2) for purposes of obtaining Dr. Gibson’s

report, without triggering application of Rule 35, and thereby avoid any reciprocity

requirement or waiver rule found in Rule 35(b) as to Dr. Rothke. Magistrate Judge Kolar

concluded that, because Rule 35(b) was not triggered by Larson obtaining Dr. Gibson’s

report, the “as provided in Rule 35(b)” language in the (D)(i) exception to the consulting

expert exemption in Rule 26(b)(4) did not allow for Defendants to demand that

Dr. Rothke prepare and deliver a report.

Discussion

Having been twice denied by Judge Kolar, Defendants are back again—this time

seeking to depose Larson’s consulting expert, Dr. Rothke. The issue raised by

Defendants’ motion arises out of the fact that Dr. Gibson and Dr. Rothke are both

specially retained experts who also happen to be medical examiners. As retained

experts, they are subject to the requirements of Rule 26(a)(2) and (b)(4). As medical

examiners, they are also subject to the requirements of Rule 35.2 Defendants’ motion

therefore requires me to interpret and apply those two rules to the facts of this case.

Let’s start with some basics. The Federal Rules of Civil Procedure are construed

like any statute. See Pavelic & LeFlore v. Marvel Ent. Grp., 493 U.S. 120, 123 (1989).

Interpretation “begin[s] with ‘the language [of the statute] itself[.]” Scherr v. Marriott

Int’l, Inc., 703 F.3d 1069, 1077 (7th Cir. 2013) (quoting McNeill v. United States, 563 U.S.

816, 819 (2011)). I must “accord words and phrases their ordinary and natural meaning

and avoid rendering them meaningless, redundant, or superfluous; … view words not

in isolation but in the context of the terms that surround them; … favor the more

reasonable result; and … avoid construing [the statute] contrary to the clear intent of the

statutory scheme.” Id. (internal quotation marks omitted) (quoting In re Merchants Grain,

Inc., 93 F.3d 1347, 1353–54 (7th Cir. 1996) (citations omitted)). “When the language of a

2 Defendants sometime refer to Dr. Rothke as a “Rule 35 medical examiner,” see [DE 43 at 6],

when he is not. A Rule 35 medical examiner is someone who conducts a medical examination by

court order (or, as happened here, at the request of the opposing party, see FED. R. CIV. P.

35(b)(6)). See Grogan v. Kumar, 873 F.3d 273, 280–81 (5th Cir. 2017) (plaintiff may not use

Rule 35 to “provide himself with an expert witness”). Dr. Rothke examined Plaintiff at Plaintiff’s

request, so he is “an examiner,” FED. R. CIV. P. 35(b)(6), but he is not “the [medical] examiner”

referred to in Rule 35(b)(1) – (b)(4).

statute is plain, [I must] enforce it according to its terms.” Id.; see also United States v.

Berkos, 543 F.3d 392, 396 (7th Cir. 2008). But in doing so I am mindful “that the words of

a statute must be read in their context and with a view to their place in the overall

statutory scheme. [I] must … interpret the statute as a symmetrical and coherent

regulatory scheme, and fit, if possible, all parts into a harmonious whole[.]” Food &

Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132–33 (2000) (internal

quotation marks and citations omitted).

As noted above, there are two exceptions to the prohibition on deposing

consulting experts under Rule 26. First, there is the Rule 26(b)(4)(D)(i) exception “as

provided in Rule 35(b).” Second, there is the “exceptional circumstances” exception set

out in Rule 26(b)(4)(D)(ii). Defendants contend that both exceptions authorize the

deposition of Larson’s consulting expert. I disagree and will take up each argument in

turn below.

A. The 26(b)(4)(D)(i) “as provided in Rule 35(b)” Exception

At first blush, it might seem like the parties’ dispute is easily resolved in

Defendants’ favor by the plain language of Rule 26(b)(4)(D)(i) and Rule 35(b)(4). Rule

26(b)(4)(D)(i) allows for discovery against a consulting expert “as provided in Rule

35(b).” And if I substitute the names of the parties for the generic terms in Rule 35(b)(4),

it states on its face that, “by deposing [Dr. Gibson], [Larson] waives any privilege [he]

might have … concerning testimony about [Dr. Rothke’s] examination[ ] of the same

condition.” FED. R. CIV. P. 35(b)(4).

But the Supreme Court has directed that, “[i]n determining whether Congress

has specifically addressed the question at issue, a reviewing court should not confine

itself to examining a particular statutory provision in isolation,” because “[t]he

meaning—or ambiguity—of certain words or phrases may only become evident when

placed in context. Food & Drug Admin., 529 U.S. at 132–33 (citing Brown v. Gardner, 513

U.S. 115, 118 (1994) (“Ambiguity is a creature not of definitional possibilities but of

statutory context”)); Vendetti v. Compass Env’l, Inc., 559 F.3d 731, 733 (7th Cir. 2009) (“All

interpretation is contextual, and the body of knowledge that goes by the name of

‘common sense’ is part of the context of interpreting most documents....’”).

So, in determining the plain meaning of the language in Rule 35(b)(4) “by

deposing the examiner,” I must be guided not only by that language but by the design

of Rules 26 and 35 as a whole. Berkos, 543 F.3d at 396. And looming large in this dispute

is the calculated design of the expert discovery rules, which treat consulting experts

“very differently from those who are expected to be called at trial.” Wright & Miller, 8A

FED. PRAC. & PROC. CIV. § 2032 (3d ed.).

On the one hand, as to testifying experts, Rule 26 provides for “detailed reports

and routine depositions” to allow parties the ability to prepare for, and effectively

cross–examine these important witnesses. Id. See also FED. R. CIV. P. 26, Advisory

Committee Notes, 1970 Amendment, 48 F.R.D. 487, 503-04. In adopting these

procedures, the Advisory Committee considered and rejected the various reasons for

past judicial restrictions or outright prohibitions on expert discovery. Thus, the

Committee “repudiate[d]” cases that had held “an expert’s information privileged

simply because of his status as an expert.” FED. R. CIV. P. 26, Advisory Committee

Notes, 1970 Amendment, 48 F.R.D. 487, 504-05. The Committee also rejected prior

decisions which found expert information to be work-product. Id. at 505. Lastly, the

Committee rejected the doctrine of “unfairness” that had been applied by some courts,

i.e., “the fear that one side will benefit unduly from the other’s better preparation.” Id.

at 504. The Committee agreed instead with the view that “it is not unfair for either party

to know in advance of trial what the other party intends to prove, what opinions his

opponent’s experts hold, the method by which those opinions were formulated, and the

facts upon which they are based.” United States v. 23.76 Acres of Land, More or Less, in

Anne Arundel Cnty., State of Md., 32 F.R.D. 593, 597 (D. Md. 1963) (cited in Advisory

Committee Notes).

On the other hand, consulting experts were treated as a horse of different color.

For consulting experts, trial preparation was not an issue. See FED. R. CIV. P. 26,

Advisory Committee Notes, 1970 Amendment, 48 F.R.D. 487, 504-05. The factors that

justify discovery from testifying experts do not apply to experts who are merely

consulting with the lawyers as they prepare their case. Wright & Miller, 8A FED. PRAC.

& PROC. CIV. § 2032 (3d ed.). Discovery from consulting experts “would tend to deter

thorough preparation of the case and reward those whose adversaries were most

enterprising.” Id.

This carefully conceived scheme for treating testifying experts differently from

consulting experts when it comes to discovery, would be overridden if, as Defendants

argue, Rule 35(b)(4) can be read as forcing a plaintiff to waive the protection normally

afforded a consulting medical examiner if he wants to exercise his right to depose his

opposing party’s testifying expert who also happens to be a medical examiner. Yet

Defendants argue that is exactly what was intended by the “as provided in Rule 35(b)”

language in Rule 26(b)(4)(D)(i). But this ignores the fact that there is no qualification in

Rule 26(b)(4)(A) concerning the right to depose a testifying expert. The “as provided in

Rule 35(b)” language qualifies the consulting expert privilege, but one would expect

that if the right to depose a testifying expert can be subject to other conditions, that

would be clearly spelled out in Rule 26(b)(4)(A) itself, particularly given the

Committee’s findings regarding how essential discovery from testifying experts is.

Indeed, in light of the Committee’s emphasis on the importance of deposing testifying

experts in order to adequately prepare for trial, it is not obvious why the Committee

would have drafted the rules to require the examined party under Rule 35 to make a

choice of either foregoing that preparation or allowing his opponent to depose his

consulting expert. If, as Defendants argue, the goal is full disclosure of medical

examiners on both sides, Defendants’ interpretation of the rules does not necessarily

lead to that result. Instead, the result could just as likely be that neither expert is

deposed.

The Committee Notes make clear that the expert discovery rules as a whole were

adopted to “abolish the notion that an expert’s information was protected … as

‘privileged’ … and to insert in [its] place a rule of application based on the doctrine of

‘unfairness.’” Pearl Brewing Co. v. Jos. Schlitz Brewing Co., 415 F. Supp. 1122, 1137 (S.D.

Tex. 1976) (citing the Committee Notes, which state that the new expert discovery rules

“repudiate” cases that had held “an expert’s information privileged simply because of his

status as an expert,” FED. R. CIV. P. 26, Advisory Committee Notes, 1970 Amendment, 48

F.R.D. 487, 504-05 (emphasis added)). The word “privilege” does not appear in Rule

26(b)(4)(D), and, apparently, its omission was intentional: Courts repeatedly have noted

that, per the Advisory Committee Notes, “[t]he concept of privilege … does not apply

to the discovery of a consulting expert’s opinion.” Hartford Fire Ins. Co. v. Pure Air on the

Lake Ltd. P’ship, 154 F.R.D. 202, 206 n.6 (N.D. Ind. 1993). The consulting expert rule is an

“exemption” from discovery “based on the concept of unfairness” rather than a

“privilege.” Kingdom Auth. v. City of Rockford, 2011 WL 245585, at *3 (N.D. Ill. Jan. 26,

2011).

So where does that leave Rule 35(b)(4), which refers to a waiver of “privilege”? It

seems pretty clear, as Defense counsel acknowledged during oral argument, that Rule

35(b)(4) was drafted with state evidentiary privileges in mind, such as the patient-

physician privilege. See, e.g., Buffington v. Wood, 351 F.2d 292, 296 (3d Cir. 1965); 7

MOORE’S FED. PRAC.-CIVIL, § 35.12[5] (“Privileges that have been waived by obtaining a

copy of the examination report cannot be reasserted under state law”—referring to

discovery and evidentiary privileges, including the physician-patient and

psychotherapist-patient privileges); Wright & Miller, 8B FED. PRAC. & PROC. CIV. § 2237

(3d ed.) (similar). Here, Larson is not asserting physician-patient privilege as the reason

for protecting Dr. Rothke from being deposed, nor could he, because in Indiana a

plaintiff in a personal injury suit waives the physician-patient privilege as to those

matters that have a “direct medical relevance to the claim, counterclaim, or defense

made.” Jenson v. Lowe’s Home Cntrs., LLC, No. 1:22-CV-1100-JRS-CSW, 2024 WL 1340324,

at *13 (S.D. Ind. Mar. 29, 2024) (internal quotation marks and citations omitted).

Finally, explanations of Rule 35(b) by legal commentators reinforce the idea that,

aside from an examined plaintiff’s absolute right to request and receive the Rule 35

medical examiner’s report, the differential treatment between testifying and consulting

experts set out in Rule 26 should be maintained:

[I]f examination reports are not privileged but were created

in anticipation of litigation or preparation for trial, they may

be discovered only under the provisions of Rule 26(b)(4),

…[which] distinguishes between cases in which the

examining expert is expected to be called at the trial, and

cases in which it is expected that the examiner will not be

called, in which event the report is discoverable only under

Rule 35(b), or on a showing of ‘exceptional circumstance

under which it is impracticable for the party to obtain facts

or opinions on the same subject by other means.

7 MOORE’S FED. PRAC. - CIVIL, § 35.12[6] See also FED. R. CIV. P. 35, Advisory Committee

Notes, 1970 Amendment, Subdivision (b)(3) (“To be sure, if the report is privileged,

then discovery is not permissible under any rule other than Rule 35(b) and it is

permissible under Rule 35(b) only if the party requests a copy of the report of

examination made by the other party’s doctor.”)

Defendants ignore all this background regarding Rule 26’s deliberate scheme to

treat testifying and consulting experts differently and focus instead on the purpose,

language, and design of Rule 35. They argue that the intent of Rule 35 is to “preserve

the equal footing of the parties to evaluate the plaintiff’s [physical or mental

condition].” [DE 41 at 9 (quoting Diaz v. Con-Way Truckload, Inc., 279 F.R.D. 412, 419

(S.D. Tex. 2012)]. But that description of the rule’s purpose refers primarily to its

essential feature, which is the ability of a party to compel an opposing party to undergo

a medical examination. See FED. R. CIV. P. 35(a)(1). That purpose has been served here—

Defendants were able to evaluate Larson through Dr. Gibson’s examination.

Defendants contend that their ability to evaluate Larson is not on an “equal

footing” if Larson can depose Dr. Gibson, but they cannot depose Dr. Rothke. But that

disparity of treatment is exactly what is sanctioned by Rule 26(b)(4)’s deliberate

differentiation between consulting and testifying experts. The issue is whether the

intent was to eliminate that disparity for medical examiners. Defendants’ argument

presupposes, rather than establishes, that there was such an intent. To the extent that

their argument is based on a view that Rule 35 serves some sort of all-encompassing

equalizer of expert discovery for medical examiners, that view is not supported by the

case law. Discussions of Rule 35 describe its essential purpose as providing for

compelled medical examinations with the concomitant right of the examined person to

receive a report by the medical examiner for whom he was compelled to permit an

examination.

What’s more, that Rule 35 is primarily about an exchange of reports is shown by

Defendants’ own arguments, which tend to focus on that requirement. For instance,

Defendants assert that, whenever a plaintiff receives the examiner’s report, a waiver of

privilege or reciprocity must always be imposed by Rule 35, regardless of whether a

Rule 35(b)(1) request for the examiner’s report is made by the examined party. [DE 41 at

9]. Not only are Defendants arguing about a waiver based on the report requirements in

Rule 35, which is not at issue on the current motion, but the case law clearly disproves

their assertion that a waiver arises whenever the Rule 35 examiner’s report is turned over

to the examined plaintiff.3

Defendants also try to distinguish the deposition issue from the reports issue,

asserting that, while the waiver for reports requires that a report has been requested

and obtained, the waiver for depositions has no “request” precondition for it to be

triggered. This argument supposes that (b)(4) contains two separate waivers, which

operate independently of each other such that the examined party could be found to

have not waived any privilege based on receiving the examiner’s report while at the

same time to have waived privilege by deposing the examiner. That’s not at all sensible.

More to the point, the commentary to Rule 35 makes it plain that there is only a single

waiver in (b)(4), and that waiver is triggered by a request for the examiner’s report. See

Wright & Miller, 8A FED. PRAC. & PROC. CIV. § 2237 (3d ed.) (“[B]oth the exchange-of-

reports provision of Rule 35(b)(l) and the waiver-of-privilege provision of Rule 35(b)(4)

are dependent on a request by the examined party for a report of the examination. If that

party makes no request, he or she cannot be required to provide copies of his or her own

reports and the waiver provision of Rule 35(b)(4) does not come into play.” (emphasis

3 See, e.g., Benning v. Phelps, 249 F.2d 47, 48 (2d Cir. 1957) (per curiam) (holding that plaintiff

had no reciprocal obligation under Rule 35 because the plaintiff “received copies of defendants’

reports pursuant to an order of the court, and not pursuant to his own request”); Hardy v. Riser,

309 F. Supp. 1234, 1236 (N.D. Miss. 1970) (holding that “[t]he delivery of an unrequested

medical report does not satisfy the waiver requirement of Rule 35(b)[(4)]”); see also Sher v.

DeHaven, 199 F.2d 777, 781 (D.C. Cir. 1952) (stating that the defendant’s “mere willingness to

furnish [the plaintiff] a report [of defendant’s examiner] which [the plaintiff] had not requested

… did not entitle [the defendant] under Rule 35 to demand reports of other examinations which

[the plaintiff] had undergone on his own account”).

added)); 7 MOORE’S FED. PRAC.-CIVIL, § 35.12[5] (“Requesting Report Waives Privilege

With Respect to Other Examinations Involving Same Condition”). In other words, the

“by deposing the examiner” language is merely an add-on to the “by requesting a

report.”

This interpretation of Rule 35(b)(4) makes sense in that the examined plaintiff has

an absolute right under Rule 35 to demand the examiner’s report,4 but there is no

comparable provision granting the examined plaintiff the right to depose the medical

examiner. See House v. Combined Ins. Co. of Am., 168 F.R.D. 236, 246 (N.D. Iowa 1996).

(Rule 35 does not “create[ ] an ‘entitlement’ of the opposing party to depose the medical

examiner; “[i]nstead, Rule 35 provides only for the examined party’s right to receive

the expert’s report”). Unlike a request for a report, therefore, a “request” to depose the

medical examiner does not entitle the requester to the deposition, and it is that

entitlement which, under Rule 35(b)(4), leads to the waiver.

Defendants argue that, unless Rule 35 is interpreted to always impose a waiver

or reciprocity if the examined party has obtained a report from the Rule 35 examiner,

“[t]here will literally be no incentives for a plaintiff to ever request an examiner’s report

under Rule 35(b)(1),” and “[f]urther,” there would be no circumstances under which a

defendant could invoke 26(b)(4)(D)(i).” [DE 41 at 9]. Those assertions are untrue. Where

4 See, e.g., Crowe v. Nivison, 145 F.R.D. 657, 658 (D. Md. 1993) (“Rule 35 balances the privacy

interests of the party examined with the interest of the party seeking the 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.”); see also Charles A. Wright and Arthur R. Miller,

8 FED. PRACTICE & PROC.: CIVIL § 2231 (“The person examined has the absolute right, on

request, to receive a copy of a detailed written report of the examining physician”).

the Rule 35 examiner is also Rule 26 consulting expert, the examined plaintiff would not

have access to the Rule 35 examiner’s report under Rule 26(a)(2)(B), nor would he have

the right to depose the Rule 35 examiner under Rule 26(b)(4)(A). Accordingly, in such a

circumstance, the only way for the examined plaintiff to obtain the consulting Rule 35

examiner’s report would be with a request under Rule 35(b)(1), because, as noted, that

rule gives the examined party an absolute right to request and thereby obtain the

examiner’s report. Therefore, the primary purpose of the Rule 26(b)(4)(D)(i) exception

to the consulting expert protection is to uphold that right. See, e.g., E.N. v. Susquehanna

Twp. Sch. Dist., No. 1:09-CV-1727, 2011 WL 3163186 (M.D. Pa. July 26, 2011) (where

defendants did not intend for their Rule 35 examiner to testify at trial, court holds they

were still required to produce an examiner’s report upon the plaintiff’s request, per the

“as provided in” language of Rule 26(b)(4)(D)(i)).

Therefore, contrary to Defendants’ argument, there is an incentive for a plaintiff

to request a Rule 35 examiner’s report under subsection (b)(1), and the circumstance in

which that incentive exists reinforces the view that the only carve out for medical

examiners from the testifying/consulting expert dichotomy of Rule 26 intended by

(D)(i) is when the medical examiner is not a Rule 26 testifying expert. That is not the

situation here. (Recall that Dr. Gibson is a testifying expert.) That (D)(i) was intended

for that situation is further buttressed by the generally accepted rule that, although a

consulting Rule 35 medical examiner may be required to provide the examined plaintiff

with a report, the examined plaintiff cannot depose the consulting Rule 35 examiner

absent showing exceptional circumstances under the (D)(ii) exception.5

In short, rather than read the language in Rule 35(b)(4) “by deposing the

examiner” literally, it must be construed with other parts of Rule 35 in mind. As

discussed, the exchange of reports requirement is the primary focus of Rule 35, not

depositions.

Finally, consider the language in subsection (b)(6) of Rule 35 which states that

“[t]his subdivision [i.e., Rule 35(b)] does not preclude obtaining an examiner’s report or

deposing an examiner under other rules.” FED. R. CIV. P. 35(b)(6). Dr. Gibson is “an

examiner” and Rule 26(b)(4)(A) is an “other rule” under which he can be deposed

(because, to repeat, he is both a Rule 35 examiner and a Rule 26 testifying expert.)

Therefore, subsection (b)(6) ends up acting as a carve out to subsection (b)(4)’s waiver,

so that the waiver is not triggered when discovery is sought and allowed under another

rule. Here, as Judge Kolar previously held, Larson obtained discovery against Dr.

Gibson under Rule 26, not Rule 35. Therefore, the Rule 35(b)(4) waiver simply doesn’t

apply because Larson did not request or obtain Dr. Gibson’s report under Rule 35 at all.

5 7 MOORE’S FED. PRAC. - CIVIL, § 35.12[6] (“The taking of a deposition under Rule 35(b)(6) is

also subject to the limitations found in Rule 26(b)(4). Thus, a defendant’s expert medical witness

who has examined the plaintiff can only be deposed by the plaintiff when the defendant actually

intends to use the examiner as a trial witness, absent a showing of exceptional circumstances.”),

see, e.g., Dunning v. Thomas, No. 4:20-cv-177-TWP-DML, 2021 WL 4860954 (S.D. Ind. Oct.

19, 2021); Rawers v. United States, 488 F. Supp. 3d 1059, 1085 n.29 (D.N.M. 2020); Downs v.

River City Grp., LLC, 288 F.R.D. 507, 511 (D. Nev. 2013); Hammons v. Simmons, No. CIV. A.

3:09CV-217-S, 2010 WL 3490994, at *1 (W.D. Ky. Aug. 31, 2010); Lehan v. Ambassador

Programs, Inc., 190 F.R.D. 670, 672 (E.D. Wash. 2000); but see House v. Combined Ins. Co. of

Am., 168 F.R.D. 236, 244 (N.D. Iowa 1996) (citing cases).

Accordingly, the (D)(i) exception to the consulting expert exemption to discovery does

not apply.

B. The 26(b)(4)(D)(ii) “exceptional circumstances” Exception

As an alternative to their arguments based on Rule 35(b)(4) and Rule

26(b)(4)(D)(i), Defendants argue they should be allowed to depose Larson’s consulting

medical examiner (Dr. Rothke) because of “exceptional circumstances under which it is

impracticable for the party to obtain facts or opinions on the same subject by other

means.” Fed. R. Civ. P. 26(b)(4)(D)(ii). As one might imagine, showing “exceptional

circumstances” is a steep climb. Wright & Miller, supra, § 2032; see also Braun v. Lorillard

Inc., 84 F.3d 230, 236 (7th Cir. 1996) (despite the fact that the consulting expert rule

“invites shopping for favorable expert witnesses and facilitates the concealment of

negative test results,” the “exceptional circumstances” exception to that rule “is a

narrow one”).

The party seeking the discovery can satisfy that heavy burden in one of two

ways. “First, the moving party may show that the object or condition at issue is

destroyed or has deteriorated after the non-testifying expert observes it but before the

moving party’s expert has an opportunity to observe it. Second, the moving party may

show there are no other available experts in the same field or subject area.” Spearman

Indus., Inc. v. St. Paul Fire & Marine Ins. Co., 128 F. Supp. 2d 1148, 1152 (N.D. Ill. 2001).

Defendants plainly cannot show the second circumstance is met here of there being “no

other available experts in the same field or subject area” because they have their own

expert, Dr. Gibson.

Instead, Defendants appear to be seeking application of the first condition in

arguing that Plaintiffs should be required to at least produce Dr. Rothke’s raw testing

data, even if he is protected from being deposed. [DE 41 at 10-11]. As an initial matter,

everyone seems to admit that Dr. Gibson already possesses that raw testing data from

Larson’s prior expert (Dr. Morris.) As for Dr. Rothke’s raw testing data, Larson correctly

points out that it falls within the definition of “facts known and opinions held” by a

consulting expert, which is undiscoverable under Rule 26(b)(4)(D). [DE 42 at 11 n.2.]

Defendants respond that they should nevertheless be given access to Dr. Rothke’s “raw

test scores as a means of effectively preparing for [Dr. Gibson’s] deposition and/or trial

testimony,” i.e., “to parry any attack that Dr. Gibson should have given a different test

battery,” or, “if the raw test scores obtained by Dr. Rothke are substantially similar to

those obtained by Dr. Gibson,” to contradict “Plaintiff’s claims that his condition

continues to deteriorate.” [DE 41 at 11]. But this argument is entirely lost on me.

Preventing a party from using its opponent’s consulting expert for these purposes is the

whole point of the consulting expert exemption.

Equally unimpressive is Defendants’ argument that they should be entitled to

depose Dr. Rothke because doing so would be helpful to them. But this “flips Rule

26(b)(4)(D) on its head.” Strobl v. Werner Enters., Inc., 577 F. Supp. 3d 960, 969 (S.D. Iowa

2022) (rejecting the defendants’ argument that a consulting expert’s report was

“discoverable because it ‘shows there is no brain injury’ and is ‘vital to the Defendants’

case,’” stating that “[r]equiring disclosure when a consulting expert’s opinion is

unfavorable to the party that obtained it would cause the purpose of the rule to become

a basis for defeating it.”). See also Spearman Indus., Inc., 128 F. Supp. 2d at 1152 (same).

In sum, the Rule 26(b)(4)(D)(ii) “exceptional circumstances” exception to

discovery of consulting experts plainly doesn’t apply here.

Conclusion

For all of the above reasons, Defendants’ Motion To Compel Deposition Of

Dr. Rothke Pursuant To Federal Rule Of Civil Procedure 35(b)(4) [DE 41], is DENIED.

The parties are DIRECTED to complete Dr. Gibson’s Rule 26(b)(4)(A) deposition in the

next thirty days, and to appear at a telephonic status conference on June 6, 2024 at 1:00

pm CST.

So ORDERED this 29th day of May, 2024.

s/ Philip P. Simon

DISTRICT JUDGE PHILIP P. SIMON

UNITED STATES DISTRICT COURT