UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Johnny L. Bradley, et al.

v. Case No. 07-mc-001-JM

Cooper Tire & Rubber Company, and

Ford Motor Company

O R D E R

 Defendant Cooper Tire & Rubber Company (“Cooper Tire”) moves

to quash plaintiffs’ subpoenas directed to Dr. Christopher G.

Shapley who, from August 15, 2006 until December 15, 2006, was a

designated expert of Cooper Tire. 

Background

Dr. Shapley was designated by Cooper Tire on August 15th. 

Prior to that he had been deposed as a fact expert in connection

with a claim of spoilation of the tire in question in the

accident. He stated that he never saw the tire. Also on August

15th a copy of his report was produced. On August 16th he was

offered up for a deposition on September 29th. Plaintiffs

accepted the offer and noticed Shapley’s deposition for September

29. By letter of September 22, 2006 Attorney Richard H. Monk III

of Bradley Arant Rose & White LLP, counsel to Cooper Tire,

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reneged on his agreement to have Shapley deposed on the 29th. In

fact, neither Bradley Arant lawyers nor Shapley appeared on

September 29, 2006. 

Plaintiffs’ counsel alleges that Monk, to avoid a sanctions

hearing, then proposed dates in early December. Still later he

withdrew the proffered December dates and, by letter of November

17, 2006, offered a Shapley deposition on January 5, 9, or 12,

2007. On November 29th plaintiffs’ counsel issued deposition

notices for January 12th. On December 15th Cooper Tire filed an

amended expert designation omitting Dr. Shapley as a testifying

expert. Cooper Tire, presumably through its counsel, informed

plaintiffs that Dr. Shapley would not be produced because he was

now a “consulting expert”. Plaintiffs then subpoenaed Dr.

Shapley for deposition on the 12th. Cooper Tire, joined by Ford,

move to quash the subpoena. Plaintiffs’ counsel says he crossdesignated Shapley but no such designation appears on the

designation of experts he attached as an exhibit to his

objection. 

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1While Bradley Arant appears to have breached two “attorneys

agreements” such agreements are enforceable under New Hampshire

law only as to attorneys practicing here. As a consequence, this

motion cannot be decided on the basis of the enforcement of

attorneys’ agreements.

3

Discussion1

Federal Rules of Civil Procedure 26(b)(4)(H) permits a party

to depose “any person who has been identified as an expert whose

opinions may be presented at trial.” On the other hand, a

deposition of consulting expert is permitted “only as provided in

Rule 35(b) or upon a showing of exceptional circumstances.” Fed.

R. Civ. P. 26(b)(4)(B). The purpose of Rule 26(b)(4)(A) is to

permit for preparation for cross-examination at trial. Shu-Tao

Lin v. McDonnell Douglas Corp., 742 F.2d 45, 48 n.3 (2d Cir.

1984). The purpose of Rule 26(b)(4)(B) is to preclude

“unreasonable access to an opposing party’s diligent trial

preparation.” Durflinger v. Artiles, 727 F.2d 888, 891 (10th

Cir. 1984). In other words, Rule 26(b)(4)(B) is intended to

protect the attorney’s work product. 

The principal question is whether Rule 26(b)(4)(A) or (B)

applies. On this question there is a split authority. A

leading treatise states: 

Once a party has designated an expert

witness as someone who will testify at trial,

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the later withdrawal of that designation may

neither prevent the deposition of that

witness by the opposing party nor the

expert’s testimony at trial. Furthermore, if

a party is deemed to have waived the

privilege as to documents provided to its

named expert, that party may not avoid

production of those documents under Rule

26(b)(4)(A) by later changing the designation

of that expert from “testifying” to “nontestifying” expert.

6 Moore’s Federal Practice § 26.80[1][a](3d ed.) Professor Moore

cites to House v. Combined Ins. Co. of America, 168 F.R.D. 238

(N.D.Iowa 1996) and CP Kelco U.S. Inc. v. Pharmacia Corp., 213

F.R.D. 176 (D.Del. 2003). Other cases also support this view. 

See Ferguson v. Michael Foods, Inc., 189 F.R.D. 408 (D. Minn.

1999); Rubel v. Eli Lilly and Co., 160 F.R.D. 458, 460 (S.D.N.Y.

1995). 

The contrary line of authority provides that a party may

prohibit discovery from a consulting witness after his

designation as an expert is withdrawn. See Callaway Golf Co. v.

Dunlop Slazenger Group Americas, 2002 WL 1906628 (D.Del. Aug. 14,

2002) (collecting case law); FMC Corp. v. Vendo Co., 196 F.

Supp.2d 1023, 1041-047 (E.D.Cal. 2002); Ross v. Burlington

Northern R. Co, 136 F.R.D. 638, 638-39 (N.D.Ill. 1991); Netjumper

Software, L.L.C. v. Google, Inc., 2005 WL 3046271 (S.D.N.Y. Nov.

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10, 2005). 

Understanding that I do not have time to write an extensive

opinion before counsel must board planes for New Hampshire, I

will nevertheless briefly set forth the rationale for my decision

to deny the motion to quash. 

To suggest that Cooper Tire is or needs to consult with Mr.

Shapley confidentially at this time is a charade. Shapley’s

written opinion has been produced. He has been deposed as a fact

witness and has given a statement. His opinion is offensive not

defensive vis-a-vis Cooper Tire; that is, he has opined that the

Ford Ranger is defective. He has no opinion on the tire. Cooper

Tire is not prejudiced in any way. Furthermore, the change in

designation at the last minute comes afer two cancellations by

Cooper Tire of agreed upon depositions. Under the facts of this

case I find the House analysis persuasive. Fairness requires the

deposition go forward and there is no prejudice. Ford’s motion

for joinder (document no. 2) is granted. 

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2Nothing in this order is intended to indicate any view of

the admissibility of Dr. Shapley’s testimony under Daubert v.

Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597 (1998) and

its progeny. 

6

Cooper Tire’s motion to reply (document no. 6) is granted. 

The Motion to Quash (document no. 1) is denied.2

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: January 11, 2007

cc: Adam A. Larson, Esq.

 Jeffrey B. Osburn, Esq.

 James C. Wheat, Esq.

 Skip Edward Lynch, Esq.

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