September 19, 2013
State of Delaware Department of Transportation
Figg Bridge Engineers, Inc. and AMEC Environmental & Infrastructure, Inc., f/k/a MACTEC Engineering and Consulting, Inc.
Submitted: August 2, 2013.
Craig A. Karsnitz, Esquire Timothy Jay Houseal, Esquire William E. Gamgort, Esquire Young Conaway Stargatt & Taylor, LLP Rodney Square.
John Anthony Wolf, Esquire John F. Morkan III, Esquire Anthony F. Vittoria, Esquire Ian I. Friedman, Esquire Ober, Kaler, Grime & Shriver A Professional Corporation.
James F. Lee, Jr., Esquire Michael F. Germano, Esquire Lee & McShane.
Frederick H. Schranck, Esquire Deputy Attorney General Department of Transportation.
Mary Page Bailey, Esquire Deputy Attorney General.
After consideration of the arguments and materials pertaining to Defendant AMEC Environmental and Infrastructure, Inc.'s ("AMEC") Motion to Compel Discovery, the Motion is GRANTED.
In this case, several opinions have been published,  and the information about this litigation will not be repeated. The present question concerns whether AMEC may depose Mark McNeilly, P.E., D.GE. ("McNeilly") of Golder Associates, Inc. ("Golder") in Newark, New Jersey, where McNeilly is principally employed.
Under the Pretrial Scheduling Order, dated June 15, 2012,  Plaintiff State of Delaware Department of Transportation ("DelDOT") identified four trial experts, including two Golder individuals, William F. Brumund, Ph.D., P.E., D.GE. ("Brumund") and Graham Elliott, Ph.D., C.Eng. ("Elliot"). Brumund and Elliott base their expert trial testimony on two Golder reports, prepared in 2011 and 2013. Brumund, Elliott, McNeilly, and Kerem H. Esin, P.E. ("Esin") signed these reports. The signature portions of these documents designated Elliott and Esin as senior consultants, McNeilly and Brumund as principals. McNeilly also affixed his seal as a Delaware registered professional engineer.
Brumund and Elliot have been deposed. In July 2013, AMEC no tified DelDOT that it sought to depose McNeilly. DelDOT opposed this, claiming McNeilly to be immune from discovery because, as opposed to Brumund and Elliot, McNeilly served only as DelDOT's "consultant" (i.e., non-testifying expert).
AMEC points out that the 2013 Report identifies Brumund, Elliott, Esin, and McNeilly as "the four key Golder Associates' individuals." Also, AMEC has received "thousands" of McNeilly's documents. Additionally, the reports were the work of a "team" that included McNeilly. AMEC argues that even as a non-testifying expert, McNeilly's role in the formation of the testifying experts' opinions, plus the fact that DelDOT and Golder did not screen McNeilly from the testifying experts, renders McNeilly vulnerable to AMEC's discovery request. Regardless of the label DelDOT attached to McNeilly, AMEC contends that exceptional circumstances under Delaware Superior Court Civil Rule 26(b)(4)(B) exist.
DelDOT notes that "McNeilly is an out-of-state, non-testifying consultant, who is neither an employee nor an agent of DelDOT." DelDOT first argues that AMEC's Motion is procedurally flawed because in order to depose McNeilly, AMEC should have subpoenaed him. Next, DelDOT argues that no exceptional circumstances under Rule 26(b)(4)(B) exist because all information that McNeilly could provide AMEC can be acquired from Brumund and Elliott. DelDOT asserts that AMEC's reliance on case law recognizing the discoverability of a non-testifying expert is misplaced because those cases did not discuss the issue presented in this Motion: the taking of a non-testifying expert's deposition, rather than production of documents. Also, DelDOT argues that if AMEC's Motion is granted, the scope of McNeilly's deposition should be limited to his role in preparing the 2011 and 2013 Reports. Furthermore, DelDOT contends that the costs of this discovery should be AMEC's responsibility. AMEC conceded this latter point at oral argument.
As Rule 26(b)(4)(B) states, discovery generally is not permitted from non-testifying experts:
A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 35(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.
Defining "exceptional circumstances" is a case-specific and sometimes challenging pursuit. This Court has stated before that "[p]arties ought to be able to consult with experts and obtain their views. They should be shielded, within reason, from having to expose these consultation experts to the full panoply of pretrial discovery."
On the other hand, a party cannot claim that a consultant is immune from discovery where the work of a consultative non-testifying expert and a testifying expert co-mingle. The closer a testifying expert relies upon a non-testifying expert, the more the non-testifying expert becomes subject to discovery .
The issue of the discoverability of non-testifying experts has been grappled with by courts in and out of Delaware. From the case law, two separate scenarios have emerged: the "two-hat" scenario and the "hand-in-glove" scenario. The former, which is not implicated in this Motion, involves one person functioning as both a consultative non-testifying expert and a testifying expert.
Under the latter, "a non-testifying expert's report is used by a testifying expert as the basis for an expert opinion, or . . . there is evidence of substantial collaborative work between a testifying expert and a non-testifying expert." Evidence of this scenario can be when the work performed by or fees paid to the non-testifying expert exceed that of the testifying expert. When this occurs, "[a] deposition limited in scope to the extent of participation of [the non-testifying expert's] in the preparation and drafting of the expert reports and the extent of any meetings and contacts between the" non-testifying expert will be permitted, so long as "the depositions [do] not extend into the underlying substantive analysis completed by" the non-testifying expert.
Within the "hand-in glove" scenario, another dichotomy emerges: discovery of a non-testifying expert's documents versus attaining a non-testifying expert's deposition. This Court discussed the former in the Sea Colony case, to which both AMEC and DelDOT cite:
Where a non-testifying consultant assists a testifying expert, such reports are discoverable as an aid for cross-examination of the testifying expert. [W]here a party employs testifying experts and consultants from the same firm, discovery will not be compelled unless the testifying expert has seen, commissioned, or relied upon the desired materials in preparing opinions and conclusions.
The latter scenario, which is relevant to this case, has not been clearly settled by Delaware courts. Federal jurisprudence, however, provides helpful instruction. In Herman v. Marine Midland Bank, the federal district court denied the plaintiff's motion for a protective order in response to the defendant's notice to take the deposition of the co-author of the plaintiff's expert's report, stating that "the evidence clearly demonstrates that the expert report submitted by [the plaintiff's expert] was the result of substantial collaborative work by he and [his c o-author]." Considering the amount of the co-author's work performed and fees rendered (each more than 50% higher than the expert's), the court found the work between the co-author and the expert "indivisible." Although the court did not actually rule that the collaboration between the two constituted an exceptional circumstance, this Court finds that extensive collaboration can be an exceptional circumstance for purposes of Rule 26(b)(4)(B).
There is one last piece to this puzzle: limiting the scope of the non-testifying expert's deposition. In Apple Inc. v. Amazon.com, Inc., another federal case, the magistrate judge granted Amazon's request for a deposition of Apple's expert's assistants, but tailored the scope of that deposition only to the assistants' involvement in the creation of the expert's report. Amazon could question the assistants as to whether they performed consulting work for Apple independent of the expert, but could not question the assistants as to what they discovered in their independent work because Amazon had shown neither that the expert relied on the assistants' independent work nor that the expert substantially collaborated with the assistants regarding that work.
With the aforementioned principles discussed, this Court finds that exceptional circumstances under Rule 26(b)(4)(B) have been shown, warranting AMEC's taking McNeilly's deposition. By signing the Reports, it appears that McNeilly is one of the authors whose work contributed to the ultimate trial opinions. At argument, DelDOT indicated that McNeilly was cast only as a consultant, rather than a testifying expert, because Brumund and Elliott have superior communication skills. This is a legitimate position.
On the other hand, McNeilly substantially collaborated with his colleagues in the formulation of several findings and opinions, as Brumund described in his May 2013 deposition:
Different folks did different pieces. [S]ince a lot of the original documents were in our Newark office, I [Brumund] would go to Newark and meet with Mark McNeilly and some of the other people in that office, David Lee, Paskal Masal, they were doing settlement calculations and time rate calculations, and a lot of the early work on the mechanisms at play would have been done by me and by folks in our Newark office. The first portion of the work was done largely by McNeilly and myself, and putting the report together, I brought in two other really good young engineers that I work with quite a lot, and that's Kerem Esin and Graham Elliott. And – so the four of us – I would meet with them; okay, your task is do this . . . let's get it together, give me a draft, let's see how it looks, let me see what you're doing, make sure the calculations are checked. And so I was the orchestra leader, and I had different people doing different parcels of work.
While McNeilly was involved in drafting Chapter 8 of the 2011 Report, "conclusions and opinions largely [were Brumund's]." Brumund was the "team leader;" and while he "had different guys preparing drafts, " he had overall responsibility.
But the email record McNeilly sent dated April 29, 2013 shows McNeilly making technical forecasts. On October 24, 2012, in a series of emails sent to Brumund and Elliott, McNeilly attempted to develop a timeline concerning the decision to use mechanically stabilized earth ("MSE") walls. McNeilly also sent the link of Figg's Expression of Interest, DelDOT's original Request for a Quote ("RFQ") and Figg's updated Scope of Services ("SOS"), dated May 1, 2003 and October 20, 2003.
Further, McNeilly states that the SOS dated May 1, 2003 was incorporated into Figg's original agreement with DelDOT dated June 17, 2003. After he reviewed the two SOS documents which Figg prepared and issued to DelDOT, McNeilly concluded that the configuration of roadway embankments with MSE walls was not a precondition in Figg's original agreement with DelDOT. According to McNeilly, Figg was responsible for the design of the approach embankments. Also, McNeilly concluded that the decision to design/construct the MSE approach embankments was made between May 1, 2003 and October 20, 2003, about four months after Figg's original agreement. McNeilly notes that Figg started working at risk on the project as early as February 2003 and AMEC's subsurface phase and investigation was conducted between February and July 2003. Three emails on April 18th, 19th, and 29th of 2013 show McNeilly participating in eleven revisions to Golder's 2013 Report. The record shows that McNeilly recommended the removal or revision of a table concerning first cost construction estimates and assumptions as to drain elevations.
Considering the forgoing, notwithstanding DelDOT's designation of McNeilly as merely a consultant, McNeilly had a substantial role in the procurement of the experts' reports, upon which DelDOT's designated trial experts relied. As in Herman, "extensive collaborative work" existed between McNeilly and the trial experts, which this Court considers to be an exceptional circumstance under Rule 26(b)(4)(B). Therefore, discovery relating to McNeilly will be permitted.
Additionally, this discovery will be broader than the mere production of documents. AMEC will be permitted to take McNeilly's deposition. As in Apple, however, this deposition will be limited, although it need not be as limited as the deposition in Apple because the trial experts in this case, unlike in that case, did rely on McNeilly. Thus, McNeilly's deposition will be limited to his interactions with the testifying experts, identifying what he said to them and what information and documents were provided. He may not be questioned about any matter upon which the testifying experts did not rely in forming their expert opinions.
For the reasons set forth above, AMEC's Motion is GRANTED. This ruling serves Rule 26(b)(4)(B)'s protective purposes relating to work product while allowing for the exploration of the bases of testifying experts' opinions. Costs shall be borne by AMEC.
IT IS SO ORDERED.
Very truly yours,
RICHARD F. STOKES, JUDGE.