Ager v. Jane C. Stormont Hospital & Training School for Nurses
622 F.2d 496 (10th Cir. 1980)

  • Agar was severely and permanently injured during birth. She sued the hospital and the medical staff for negligence.
  • During discovery, one of the defendants, Dr. Tappen, sent an interrogatory to the plaintiff basically asking whether or not they had hired an expert witness, and if so, what that witness said. Agar objected to the interrogatory.
  • Tappen filed a motion for an order to compel delivery, under Rule 37(a). The magistrate ordered Agar to answer.
    • Agar answered, but did not provide information on potential expert witnesses that they consulted, but who they did not intend to call at trial. Agar only provided information on witnesses they intended to actually use.
  • The magistrate once again ordered Agar to fully disclose all the information requested in the interrogatory. Agar objected, but a Court ordered compliance. Agar’s lawyer refused and was arrested for contempt. Agar appealed.
    • The lawyer probably wanted a citation for contempt. Normally, you cannot appeal a decision until the entire case has been settled, but since discovery occurs so early in the litigation process, it would be better to get the final decision out of the way immediately. Since contempt citations are considered a separate proceeding, they are immediately appealable.
  • The Appellate Court reversed the finding of contempt.
    • The Appellate Court looked to Rule 26(b)(4)(B) specifically deals with expert witnesses, and says that there can be no discovery against experts who were informally consulted, but not retained or specially employed.
    • The Court reasoned that if one party found out about the opposing party consulting with, but not using, an expert witness, they could use that information against them.
      • The assumption is that if you don’t use an expert witness you’ve consulted, then it must be because they are saying things that don’t support your side of the case.
    • The Court found that, if the expert witness was not retained, then discovery was barred. If the expert witness had been retained, but there was no intention to use them in the trial, then discovery would be barred unless exceptional circumstances could be shown.