Lack of Clear Distinction Between "Dual Hat" Expert’s Roles Requires Production of Information Considered in Consulting Role

The court granted defendant's motion to compel the production of documents reviewed by plaintiff's "dual hat" expert that plaintiff withheld as privileged because plaintiff failed to establish a clear distinction between the expert's duties as both a consulting and testifying expert. "Plaintiff [argues the expert's] consulting role . . . was a 'separate engagement' . . . that there is a clear distinction between [the expert's] consulting and testifying roles because the information he considered in his consulting capacity, which was broader in geographic scope and included information on additional products, extends beyond the information he considered in his testifying capacity. . . . Plaintiff's assertion that [its expert's] consulting and testifying roles are separate engagements is belied by the fact that Plaintiffs have presented only one engagement agreement for [the expert]. . . . That [he] considered information in his consulting role beyond that which he considered in his testifying role does not establish a clear distinction. Since the information considered by [the expert] for his consulting role included United States sales data and other information relevant to the current case, it is difficult, if not impossible, to believe that it did not inform the opinions in his testifying expert report concerning damages. Accordingly, Plaintiff must produce the documents it exchanged with [the expert] in his consulting role."

Ansell Healthcare Products LLC v. Reckitt Benckiser LLC, 1-15-cv-00915 (DED December 11, 2017, Order) (Andrews, USDJ)