The line between testifying and non-testifying experts can be critical, because the discovery rules generally allow discovery of the former, but discourage discovery of the latter. Courts sometimes must determine if non-testifying experts may be deposed based on their filing of an expert’s report in another related case.
In State ex rel. American Economy Insurance Co. v. Crawford, 75 S.W.3d 244, 246 (Sup. Ct. Mo. 2002) (citation omitted), the court allowed such deposition, explaining that “the bell has been rung and it cannot be unrung.”
Litigants who rely on experts to play differing roles in related cases should remember that the experts might be vulnerable to discovery based on their activity in the related case.