Thompson Medical Company, Inc

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IN THE MATTER OF THOMPSON MEDICAL COMPANY, INC.

Docket 9149. Interlocutory Order, March, 1983 ORDER ON RESPONDENT S APPLICATION FOR INTERLOCUTORY REVIEW It has long been the Commission s policy to provide to the respondents in its administrative proceedings copies of all prior statements of complaint counsel' s witnesses, for use in cross-examination. Inter- State Builders, Inc. 69 F. C. 1152 (1966); Ernest Mark High 56 F. 625 (1959). While the Commission is not bound by the Jencks Act, 18 UB. C. 3500, or compelled to adhere to its principles, it does look to court decisions interpreting it for guidance in enforcing its own policy. USLife Credit Corp. 91 F. C. 984, 1036-37 (1978). On April 30, 1979, the Federal Rules of Criminal Procedure were amended, effective December 1, 1980, to require the production of Jencks-type" prior statements of allwitnesses (except the defendant) in criminal trials, on motion of the opposing party. Fed.R.Crim. 26.2(a), 18 U. C. Rule 26.2 (1982 Supp.). On July 5, 1982, the trial in this proceeding began. On July 30, 1982, complaint counsel moved for an order directing respondent to produce Jencks-type statements of its witnesses, consistent with the amended Rules. The Administrative Law Judge CALI" concluded on August 19, 1982, that the circumstances ofthis particular case justified an order for the production of such statements by respondent' expert witnesses. On September 15 1982, respondent applied for review of the order, and on October 21 the ALI certified the review to the Commission under Section 3.23(b) of the Commission s Rules of Practice, 16 U. C. 3.23(b), as involving a controllng question of policy as to which there is substantial ground for differences of opinion. The ALI further concluded that immediate appeal may materially advance the ultimate disposition of the litigation. The trial continued, with respondent tendering all required statements of its expert witnesses, subject to an agreement that this would not be deemed a waiver of respondent' s rights to pursue its appeal. On December 17, 1982, respondent completed the presentation of its witnesses.

The Commission has determined to grant review of the order because it presents a controllng question of policy on which the Commission has as yet provided no guidance, and there is substantial ground for differing views. Furthermore, resolution of the question wil facilitate the ultimate resolution of this case. In establishing the defendant's right to examine and use in cross- Initial Decision 101 F.

examination the prior statements of government witnesses in federal criminal prosecutions, the Supreme Court emphasized the value of eyewitness accounts, and particularly contemporaneous eyewitness accounts, of events in controversy: "Every experienced trial judge and trial lawyer knows the value for impeaching purposes of statements of the witness recording the events before time dulls treacherous memory. Jencksv. United States 353 U.s. 657 667 (1956). Similarly, in upholding a trial judge s order that the report of an investigator for the defendant be revealed to the prosecution for use in the crossexamination of the investigator, the Court reasoned that his contemporaneous report of eyewitness' accounts of an armed robbery "might provide critical insight into the issues of credibility that the investigator s testimony would raise. United States v. Nobles 422 U.S. 225 232 (1975). The Jencks Act and revised Rule 26.2 were adopted to clarify and circumscribe the authority ofthe federal judiciary to exercise their inherent power, recognized in the Jencks and Nobles decisions, to enhance the truth-finding process in criminal proceedings by ordering the discovery of witnesses ' prior statements. Palermo United States, 360 U.S. 343 (1959); Notes of Advisory Committee on Rules, 18 U. c. Rule 26.2 (1982 Supp.

The Commission has concluded that it is unnecessary to adopt the principle of Rule 26.2 to assure adequate cross-examination of expert witnesses in its proceedings, even assuming arguendo that the need to uncover prior inconsistent statements of witnesses is as compelling in such proceedings as it is in criminal trials. The Commission s Rules of Practice already provide for extensive discovery concerning expert witnesses. Section 3.31(b)(4)(i provides that discovery of facts known and opinions held by expert witnesses may be obtained as follows: (A) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at hearing, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.

(B) Upon motion, the Administrative Law Judge may order further discovery by other means, subject to such restrictions as to scope as the Administrative Law Judge may deem appropriate.

This section is nearly identical to Rule 26(b)(4) of the Federal Rules of Civil Procedure.! J Rule 26(b)(4) provides (4) Trial Preparation: Expert- Discovery offacts known and opinions held by expert, otherwise discoverable Under the provisions of subdivision (b)(l) ofthis rule and acquired or developed in anticipation oflitigatioo. or for trial, may be obtained only as follows: (A)(i) A party may through interrog-atoritJ5 require any other party to identify each person whom the other (footnote cont'd) .. . . .

, d .-.

385 Interlocutory Order There is a division among the courts as to the appropriate scope of discovery under subsection (b)(4)(a)(ii) of Rule 26, which is analogous to subsection 3.31(b)(4)(i)(B) of the Commission s Rules. It has been held that in order to obtain "further discovery" beyond interrogatories under this subsection (specifically, in these cases, copies of reports written by experts), the moving party must show "unique or exceptional circumstances"2 or a Hcompelling" need for such discovery. One court has explicitly incorporated into subsection (b)(4)(a)(ii the substantial need" standard contained in Rule 26(b)(3)-the analog to Section 3.31(b)(3) of the Commission s Rules-in considering a discovery request for documents prepared by an expert in anticipation of litigation.4 However, the prevailng view is more liberal: further discovery should be granted when a request is reasonably framed to enable the movant to prepare for effective cross-examination of the expert or rebuttal. 5 pary expects to call as an expert witness at tral, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. (ii) Upon motion, the cour may order further discovery by other means, subject to such restrictions as to scope and such provisions, pursuant to subdivision (b)(4)(C) of this rule, concernng fees and expenses as the court may deem appropriate. Breedlove v. Beech Aircraft Corp. 57 FRD 202, 205 (N.D. Miss. 1972). The decision here may have tured on the fact that discovt!ry of the witnesses' report was requested before discovery under subsection (b)(4)(a)(i) had been completed- The cour have unifonry agreed that Rule 26 establishes a two-step process for discovery regarding expert witnesses. , Shakelfordv. Vermeer Mfg. Co. 93 FRD 512 (W.D. Texas 1982); United States v. Int l Business Machines Corp. 72 FRD 78 (S. Y. 1976);Herbstv. Int l Telephone Telegraph Corp. 65 FRD 528 (D. Conn. 1975);United Stutesv. John R. Piquette Corp. 52 F'RD 370, 372 (E.D. Mich. 1971). United Statesv. 14.'i31Acres of Land, 54 FRO 359, 360 (M.D. Pa. 1972). Wilson v. Resnick 51 FRD 510 (E.D- Pa- 1970). The court also appljed the standard of Rule 26(b)(3) in evaluating the discoverability of expert' report inBreedlove v. Beech Aircraft Corp.,57 FRD 202, 205 (N.D. Miss. 1972). However, it is not clear that the cour considered that standard to he incorporated into 26(b)(4)(a)(ii); it may have (erroneously) considered 26(b)(3) to offer an alternative ground for discovery of the report. The approach in Resnickhas been criticized as "interject(jng) the work-product doctrine into an area of discovery in which the Advisory Committee (to the Rules ofCiviJ Procedure) explicitly rejected the doctrne." Graham Discovery ofExpert Under Rule 26(b)(4) ofthe Federal Rules of Civil Procedure: Part One, An Analytical Study, 1976 U.Il. 895, 927. Ths approach has also been defended as logical, if the expert has taken on a consulting role in the litigation. Comment, Discovery of Expert Infonnation Under the Federal Rules, 10 U.Rich.LRev. 706 719-21 (1976).See also Connor!, A New Look at an OJd Concern-Proteting Expert Information From Discovery Under the Federal Rules, 18 Dusquesne L.Rev. 271 (I980). 5 &0 Colony West Phase I Condominium Ass v. Sea Colony, Inc.,438 A.2d 1233 (Super- Ct- Del. 1981) (decided under state cour rules, but relying on the Advisory Committee Note on the Federal Rules and the federal case law on Rule 26(b)(4)(a)(ii);In Re IBM Peripheral EDP Devices Antitrust Litigation 77 J.'RD 39 (N.D. Cal. 1977); Quadriniv. SikorskyAircraftDiv., United Aircraft Corp. 74 FRD 594 (D. Conn. 1977). InHerbstv. Int l Telephone & Telegraph Corp. 65 FRD 528, 530 (D. Conn. 1975), the cour went so far as to conclude that "(ounce the traditiollal problem of allowing one party to obtain the benefit of another s expert cheaply has ben solved, there is DO reason to treat an expert differently than any other witness." Unlike the other cases,Herbst concerned a request for deposition rather than the production of a report prepared by an expert. In another case involving" requests for both report and depositions, the cour expressd the view that Rile 26(b)(4) provides for "quite liberal" discovery of the opinions of expert; however, the court did not reveal specifically what test it would apply in evaluating requests under (a)(ii) aftr discovery under (a)(i) was completed-United Statesv. John R. Piquette Corp. 52 FRD 370 (E.D. Mich. 1971) In addition to these reported cases, a survey offederal district judges, magistrates, government attorneys, and private practitioners indicates that:

the actual practice of discovery of expert witnesses expected to he caUed at trial varies widely from the two-step procedure of Rule 26(b)(4)(A). The interrogatory overwhelmngly is recognized as a totally unsatisfactory method of providing adequate preparation for crossxamination and rebuttal. In practice, full discovery is the rue, and practitioners use all available means of disclosure including both the discovery of expert's report and depositions.

(footnote cont , Interlocutory Order 101 F. The Advisory Committee to the Rules of Civil Procedure did not expressly explain how "further discovery" should be evaluated. However, the Committee emphasized in its Explanatory Statement that ( e )ffective cross-examination of an expert witness requires advance preparation. . . . Similarly, effective rebuttal requires advance knowledge of the line of testimony of the other side." On the other hand, the Committee recognized the fear, reflected in the caselaw that "one side wil benefit unduly from the other s better preparation " and it advised that the procedure it recommended would minimize the risk of that happening:

Discovery is limited to trial witnesses, and may be obtained only at a time when the parties know who their expert witnesses will be. A party must as a practical matter prepare his own case in advance of that time, for he can hardly hope to build his case out of his opponent's experts.

Subdivision (b)(4XA) provides for discovery of an expert who is to testify at the trial. A party can require one who intends to use the expert to state the substance of the testimony that the expert is expected to give. The court may order further discovery, and it has ample power to regulate its timing and scope and to prevent abuse. Advisory Committee s Explanatory Statement Concerning Amendments of the Discovery Rules, 48 F.R.D. 487, 503-4 (1970). This suggests that "the primary purpose of this subsection is to permit the opposing party to prepare an effective cross-examination" and, further, that discovery should be granted when the court is persuaded that "the party seeking discovery is not abusing the procedure and the information sought would prove helpful in providing for a full and fair adjudication. "

Thus, the Commission has concluded that the more liberal view of discovery of experts under the Federal Rules is the one that should It is most consistent with theapply in Commission adjudications.7 desire of the Commission in 1978 to "balance a somewhat broadened range of discovery with firm control by Administrative Law Judges ofthe pace and scope of adjudicative proceedings." 43 FR 56862 (1978). Accordingly, it is already well within the broad discretion of the Graham, Discovery ofBxperu Under Rule 26(b)(4) ofthe Federal Rules of Civil Procedure: Part Two, An Empirical Study and a Proposal, 1977 U.IILL.F 169, 172. The author recommends that Rule 26(b)(4) be amended to provide full discovery" to prepare for cross examination and rebuttal to comport with actual practice and with the intentions of the drafters of the Federal Rules of Evidence. Id. at 202. " Sea Colony West Phase I Condominiu.m Ass v. Sea Colony, Inc. 438 A.2d 1233, 1235 (Super. Ct. Del. 1981). See alsod. cussionsofthe Explanatory Statement in theIBMHnd Herbstcas.scited in note 5; Graham, supra note , at 921-927; and 8 C. Wright & A. Miler, Federal Practice and Procedure Section 2031 (1970) 7 When the Commission revised its discovery rules in )978 and adopted Section 3.31(b)(4)(i) in its current fonn, it explained how judicial interpretations of the Federal Rules would influence the application of its own rules: Where the Commission hhs adopted provisions substantially similar to provisions in the Federal Rules, judicial constructions of!luch analogous provisiona may aerve as interpretive aids, but they are not to be regarded as binding, because application ofthe Commission s rules must be tailored to the circumstances of Commission proceedings.

43 FR 56862, 56863 (1978) 385 Interlocutory Order Administrative Law Judges to order the disclosure of prior statements of expert witnesses such as those described in the Jencks Act. This being the case, it is unnecessary to transplant to civil administrative proceedings procedures that have been developed for criminal litigation.

Although the ALJ did not reach his decision here under Section 31(b)(4)(i)(B), his analysis was appropriate for a determination under that rule. Clearly, it was his judgment from reviewing the summaries of anticipated testimony that effective cross-examination of expert witnesses could be critical to a proper resolution ofthis case, and that the disclosure of prior statements of those witnesses could allow for more effective cross-examination than would otherwise be possible. An ALJ has broad discretion to rule on discovery requests, and his determinations wil be reversed only on a showing of clear abuse. General Foods Corp. 95 F. C. 306 (1980); Warner-Lambert Co., 83 C. 485 (1973); Boise Cascade Corp. Docket No. 9133 (order of Oct. 1982) (100 F. C. 512). Since his order is sustainable under Section 31(b)(4)(i)(B), respondent's motion that it be reversed is hereby denied.

See, e. , Xider Corp. Docket No. 9146, (order of Aug. 27 1981). Complaint 101 F.