The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RICHEY HEBERT, ET AL. * CIVIL ACTION
VERSUS * NO. 23-546
ENI PETROLEUM CO., INC., ET AL. * SECTION “E” (2)
ORDER AND REASONS
Before me on an expedited basis is Defendants ENI Petroleum Co., Inc. and ENI US
Operating Co., Inc.’s (together, “ENI”) Motion to Quash the Deposition of Dr. Thomas Bertuccini.
ECF No. 66. Plaintiff timely filed an Opposition, and ENI timely filed a Reply. ECF Nos. 71, 72.
No party requested oral argument, and the court agrees that oral argument is unnecessary.
Having considered the record, the submissions and arguments of counsel, and the
applicable law, Defendants’ Motion to Quash is GRANTED for the reasons stated herein.
I. BACKGROUND
Plaintiffs Richey and Ann Hebert filed suit against Defendants ENI Petroleum Co., Inc.,
ENI US Operating Co., Inc., Nabors Offshore Corporation, and Williams Field Services Gulf
Coast Company, LLC to recover damages for injuries sustained in a July 8, 2022, work-related fall
on the Devil’s Tower oil platform. ECF No. 33 ¶¶ IV, VIII-X. After receiving notice of a planned
surgery by Plaintiff Richey Hebert’s primary treating neurosurgeon Dr. Ilyas Munshi, ENI retained
Dr. Bertuccini to perform a Rule 35 examination, which took place in May 2023. ECF No. 66-1
at 1-2. ENI delivered a copy of Dr. Bertuccini’s report to Plaintiffs as required by Rule 35(b)(1),
but then notified counsel that they would not call Dr. Bertuccini as a witness at trial, characterizing
him as a non-testifying consultant. Id. at 2.1
1 Although the deadline for filing witness and exhibit lists was October 15, 2024 (ECF No. 61 at 8-9), it does not
appear that either Plaintiffs or ENI filed witness or exhibit lists as did intervenor on October 17, 2024.
ECF Nos. 68, 69.
Plaintiffs noticed Dr. Bertuccini’s deposition, and Defendants now seek to quash same
under Rule 26(b)(4)(D). ENI argues that an independent medical exam (“IME”) consultant who
has not been designated as a testifying expert must deliver his report but may not be deposed except
upon a showing of exceptional circumstances. ECF No. 66-1 at 3-4. Citing Fifth Circuit precedent
holding that Rule 26(b)(4)(B) (now designated as Rule 26(b)(4)(D)) applies to shield a non-
testifying expert—even one designated to perform an IME under Rule 35—from deposition absent
a showing of exceptional circumstances,2 ENI argues that Plaintiffs have not established
exceptional circumstances necessary to justify deposing the consulting expert. ECF No. 66-1 at
5-7. It also contends that the testimony would be unfairly prejudicial and cumulative. Id. at 7-9.
In Opposition, Plaintiffs argue that the motion should be denied for nine reasons, including
(1) fundamental fairness/truth seeking; (2) Dr. Bertuccini is not a consulting expert and has been
listed as a fact witness by ENI and Nabors in initial disclosures and discovery responses;
(3) Plaintiffs can establish exceptional circumstances because the information obtained by Dr.
Bertuccini on the particular day of examination is not available from any other source; (4) ENI has
abused the Rule 35 process; and (5) Dr. Bertuccini’s opinions and analysis can be used for
impeachment. ECF No. 71. Citing In re Taxotere (Docetaxel) Products Liability Litigation, No.
16-2740, 2018 WL 5669019 (E.D. La. Nov. 1, 2018), Plaintiffs argue that Dr. Bertuccini examined
Hebert and performed certain tests after which he rendered an opinion favorable to Plaintiffs, in
agreement with Hebert’s treating physician but contrary to ENI’s new expert’s opinion, and Dr.
Bertuccini is the only witness and source of information for Hebert’s physical condition on the day
of the examination; thus, he is a necessary witness rather than a consulting expert. ECF No. 71 at
2 Brower v. Staley, Inc., 306 F. App’x 36 (5th Cir. 2008).
3-7. Plaintiffs also argue that Dr. Bertuccini’s opinion can be used to impeach ENI’s new testifying
expert’s contrary opinion, and they have established exceptional circumstances. Id. at 7-13.
In Reply, ENI argues that Plaintiffs have not satisfied their heavy burden to establish
exceptional circumstances as necessary to depose a consulting expert. ECF No. 72. They argue
that Dr. Bertuccini cannot be a fact witness because he did not conduct his examination until May
15, 2023, which was a year after the accident and that Plaintiffs seek to use Dr. Bertuccini to
prejudice the jury against ENI. Id. at 1-2. ENI distinguishes the district court cases cited by
Plaintiffs, reiterates the Fifth Circuit’s statement in Brower v. Staley, Inc., and argues that Plaintiffs
cannot establish exceptional circumstances nor demonstrate how Dr. Bertuccini’s testimony can
constitute impeachment evidence. Id. at 2-5.
II. APPLICABLE LAW
The Federal Rules of Civil Procedure provide that “[p]arties may obtain discovery
regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional
to the needs of the case.” FED. R. CIV. P. 26(b)(1). “Information within this scope of discovery
need not be admissible in evidence to be discoverable.” Id. Additionally, Rule 26(b)(2) requires
that the court, on motion or on its own, limit discovery (1) that is unreasonably cumulative or
duplicative or can be obtained from another source that is more convenient, less burdensome, or
less expensive; (2) when the party seeking discovery has had ample opportunity obtain the
information by discovery in the action; or (3) when the discovery is outside the scope of Rule
26(b)(1). FED. R. CIV. P. 26(b)(2)(C)(i)-(iii).
Rule 26 of the Federal Rules of Civil Procedure specifically protects from discovery the
facts and opinions known to a non-testifying expert retained in anticipation of litigation or to
prepare for trial:
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. But a party may do so only:
(i) as provided in Rule 35(b); or
(ii) on showing 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)(i)-(ii). Courts have cited four bases for limiting discovery of non-
testifying experts’ information:
(1) counsel have an interest in obtaining advice to properly evaluate and present
their clients’ positions without fear that every consultation with an expert might
“yield grist for the adversary’s mill;” (2) it is unfair to permit a party to benefit from
the effort and expense incurred by the other in preparing its case; (3) it is possible
that compelling the experts’ testimony may result in a chilling effect on the
willingness of experts to serve as consultants, and may, in fact, be unfair to the
experts; and (4) allowing one party to call an expert previously retained or consulted
by the other side creates a risk of substantial prejudice derived from the fact of the
prior retention, apart from the substance of the testimony.3
Rule 26 recognizes that there is no need to obtain discovery from a non-testifying expert for
effective cross-examination when the expert will not testify.4 Further, allowing the deposition of
frustrates the purposes of Rule 26(b)(4)(B) by allowing a party to use his opponent's expert's
opinions to prepare his own case, and at his opponent's expense.5
The deposition may, however, be conducted upon a showing of exceptional circumstances.
The Fifth Circuit has described the burden of establishing exceptional circumstances under Rule
3 Quest Diagnostics Inc. v. Factory Mut. Ins. Co., No. 07-3877, 2009 WL 10680098, at *4 (E.D. La. Mar. 11, 2009)
(citations omitted).
4 Crews v. Nabrico, No. 99-3254, 2001 WL 46878, at *1 (E.D. La. Jan. 18, 2001) (Vance, J.) (citing Hoover, 611
F.2d at 1142 (“The primary purpose of Rule 26(b)(4)(A)'s required disclosures about experts expected to be called at
trial is to permit the opposing party to prepare an effective cross-examination.”)); see also Decena v. American
Intern. Companies, No. 11–1574, 2012 WL 1565258, *2 (E.D. La. May 2, 2012) (citations omitted).
5 Decena, 2012 WL 1565258, at *2.
26(b)(4) as a heavy one.6 Ultimately, the exceptional circumstances requirement means the
movant must establish the inability to obtain equivalent information from other sources.7
To be entitled to Rule 26(b)(4)(D)’s non-testifying expert protections, the consulting expert
must not have had prior knowledge of the facts giving rise to the litigation and must not be or
become an actor in the factual narrative of the case.8 Indeed, the Advisory Committee Notes to
Rule 26(b)(4) make clear that the Rule does not “address itself to the expert whose information
was not acquired in preparation for trial but rather because he was an actor or viewer with respect
to transactions or occurrences that are part of the subject matter of the lawsuit. Such an expert
should be treated as an ordinary witness.”9
In allowing the discovery of certain documents from the non-testifying expert witness,
Judge Morgan recently described the burden as requiring a showing that “it is impracticable for
the party seeking discovery to obtain facts or opinions on the same subject by other means.”10 But
Plaintiffs in this case do not seek any of Dr. Bertuccini’s documents; they already have his report.
What Plaintiffs seek here is to depose Dr. Bertuccini. In affirming the district court’s decision to
grant a protective order prohibiting the deposition of a non-testifying expert physician who had
conducted an IME, the Fifth Circuit unequivocally recognized that Rule 26(b)(4)’s non-testifying
expert privilege applies to Rule 35 IME physicians:
Rule 26(b)(4)(B) [now Rule 26(b)(4)(D)] of the Federal Rules of Civil Procedure
prohibits the deposition of a non-testifying expert except in accordance with Rule
35(b) or upon a showing of exceptional circumstances. While Rule 35(b) allows
the discovery of an examiner's report, it states only that it “does not preclude . . .
deposing an examiner under other rules.” Because Rule 26(b)(4)(B) controls and
6 Hoover v. U.S. Dep't of the Interior, 611 F.2d 1132, 1142 n.13 (5th Cir. 1980) (citation omitted).
7 In re Shell Oil Refinery, 132 F.R.D. 437, 442 (E.D. La. 1990) (citations omitted).
8 In re Taxotere (Docetaxel) Prods. Liab. Litig., No. 16-2740, 2018 WL 5669019, at *4 (E.D. La. Nov. 1, 2018)
(Milazzo, J.).
9 FED. R. CIV. P. 26(b)(4) advisory committee’s note to 1970 amendment.
10 Ictech-Bendeck v. Waste Connections Bayou, Inc., No. 18-7889, 2024 WL 1514192, at *4 (E.D. La. Apr. 8, 2024)
(Morgan, J.).
Brower has not shown exceptional circumstances, the district court did not abuse
its discretion in granting the motion for a protective order.11
Rule 26(b)(4)(D) requires the court to distinguish between a “percipient witness who
happens to be an expert” and “an expert who without prior knowledge of the facts giving rise to
litigation is recruited to provide opinion testimony.”12 Non-testifying consulting experts are
ordinary fact witnesses to the extent that they “acquire[ ] their information through percipient
observations” of the events at issue in the case or become actors in the factual narrative of the case:
A person is not a consulting expert if he is “an actor with regard to the occurrences
from which the tapestry of the lawsuit was woven,” whose opinion . . . is premised
on personal knowledge and observations . . . . An expert whose opinion testimony
“arises not from his enlistment as an expert but, rather, from his ground-level
involvement in the events giving rise to the litigation” is not a consulting expert.13
A witness does not, however, forfeit their status as experts merely because they learned “facts” in
the course of their investigation in addition to developing expert opinions.14
There is no question that Dr. Bertuccini qualifies as an expert retained or specially
employed in preparation for trial. The fundamental purpose of deposing a testifying expert is to
allow the party to prepare for cross-examination at trial. That is not implicated here because Dr.
Bertuccini is not testifying at trial. Had Dr. Bertuccini not delivered a copy of his report to
Plaintiffs, then they would have a better position to argue exceptional circumstances to justify the
deposition. But here, Dr. Bertuccini’s report was provided as required. Thus, this case is
indistinguishable from the Fifth Circuit’s decision in Brower.
11 Brower, 306 F. App’x at 39 (footnotes and citations omitted).
12 In re Taxotere, 2018 WL 5669019, at *3 (quoting LaShip, LLC v. Hayward Baker, Inc., No. 11-0546, 2013 WL
122202649, at *6 (E.D. La. Aug. 13, 2013) (Brown, J.)).
13 Id. at *4 (quoting LaShip, 2013 WL 122202649, at *7).
14 Costal Towing, Inc. v. Novarco, Ltd., No. 98-492, 1999 WL 970357, at *1 (E.D. La. Oct. 21, 1999) (citing Bank
Brussels Lambert v. Chase Manhattan Bank, N.A., 175 F.R.D. 34, 42 (S.D.N.Y. 1997)).
For Plaintiffs to obtain Dr. Bertuccini’s testimony, they must establish “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)(11). Plaintiffs have not shown exceptional
circumstances. Not only has Plaintiff Richey Hebert’s own physician examined him shortly before
and shortly after Dr. Bertuccini and rendered an opinion consistent with Dr. Bertuccini, but
Plaintiffs have received Dr. Bertuccini’s written report. Plaintiffs’ expert may review and analyze
that report.!° Further, Dr. Bertuccini’s knowledge derives directly from his engagement as an
expert in this case, and his examination of Plaintiff Hebert in that capacity does not transform him
from an expert witness to a percipient witness. For that reason, the exception to Rule 26(b)(4)(D)
does not apply to allow Plaintiffs to depose the non-testifying Rule 35 physician.
I. CONCLUSION
Dr. Bertuccini is a non-testifying, consulting expert. As such, he is protected from
discovery under Rule 26(b)(4)(D). Further, his opinion is cumulative of Plaintiff's treating
physician’s opinion and Plaintiffs have not established that the inability to obtain equivalent
information from other sources. Accordingly, for the foregoing reasons,
IT IS ORDERED that Defendants’ Motion to Quash is GRANTED.
New Orleans, Louisiana, this 23rd day of October, 2024.
UNITED STATES MAGISTRATE JUDGE
'5 Kiser v. Gen. Motors Corp., No. 98-3669, 2000 WL 1006239, at *3 (E.D. La. July 19, 2000) (Africk, J.) (denying
request to depose non-testifying expert where other experts had similar access and a copy of the non-testifying
expert’s report).