ny _________________________________________________ APPELLANT'S MOTION TO CALL EXPERT WITNESS AT HEARING DENIED: March 18, 1996 _________________________________________________ GSBCA 13125 ADELAIDE BLOMFIELD MANAGEMENT COMPANY, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Darryl L. Thompson, Anchorage, AK, counsel for Appellant. Nora A. Huey, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. BORWICK, Board Judge. This appeal involves a claim by Adelaide Blomfield Manage- ment Company for damages for alleged breach of the restoration clause of its lease with the respondent, General Services Admin- istration (GSA). Appellant claims that GSA failed in its duty under the clause to restore the building to its condition before the commencement of GSA's lease. A hearing on the merits is scheduled to commence on April 16, 1996. Originally, appellant sought to depose and call as a witness at the hearing Mr. Alfred Ferrarra, an expert appraiser who had been designated as an expert witness by respondent, but then withdrawn. Appellant's Motion at 1. In a conference call of March 14, 1996, appellant limited its request to calling Mr. Ferrarra as a rebuttal witness should respondent's new appraisal expert criticize Mr. Ferrarra's appraisal. We deny appellant's request. The circumstances leading to appellant's refined request are as follows. On April 15, 1991, appellant's attorney wrote GSA expressing concern that GSA was about to terminate its lease with appellant, and threatening litigation. Respondent's Opposition, Exhibit A. Accompanying this threat was an "invoice" to GSA requesting $1,180,800 for damages for alleged breach of the restoration clause. Id. On September 3, 1993, GSA retained the services of Mr. Ferrarra to conduct an appraisal "to assist GSA in negotiation[s] concerning the appropriate amount of restoration due the property owners as a result of the Government's tenancy." Respondent's Opposition, Exhibit C. The appraisal was to consider the fair market value of the property as is, and the fair market value of the property as it would be without certain restoration items present. Id. In addition to the appraisal report, the retainer contemplated trial preparation and testimony. Id. The appraisal is dated October 11, 1993, and was prepared by Mr. Ferrarra. On April 4, 1994, appellant submitted a certified restora- tion claim with the contracting officer. Appeal File, Exhibit 34. On July 14, 1994, GSA provided a copy of Mr. Ferrarra's appraisal to appellant as an aid to settlement discussions on the claim. Appeal File, Exhibit 36. A portion of the report is included in the appeal file, Appeal File, Exhibit 35; appellant's counsel represented at the pre-hearing conference of March 14 that appellant has a copy of the complete report. On December 21, 1994, appellant filed its restoration appeal with this Board; it was docketed as GSBCA 13125. On October 31, 1995, GSA advised appellant that Mr. Ferrarra was expected to testify as an expert witness concerning the information in his appraisal report and referenced Mr. Ferrarra's appraisal report earlier sent to appellant. Respondent's Opposi- tion, Exhibit D. On November 22, GSA amended its previous letter to include Mr. Richard Follett as an expert witness. Id., Exhibit F. On November 29, GSA amended that notice by substitut- ing Mr. Eric Follett for Mr. Richard Follett. Id., Exhibit H. On January 31, 1995, GSA withdrew Mr. Ferrarra as an expert witness. Id., Exhibit H. At the pre-hearing conference of March 14, respondent's counsel represented that Mr. Eric Follett has not relied on Mr. Ferrarra's report in arriving at his expert opinion. Mr. Ferrarra has submitted a declaration in which he states he does not wish to testify for appellant as an expert witness: GSA is my client to whom I owe a duty of confidentiali- ty. I believe that my relationship with GSA is confi- dential in nature and that I received confidential information as a result of that relationship. It is unethical to disclose the analyses, opinions, or conclusions of an appraisal to anyone other than the client or those persons specifically authorized by the client to receive such information. The Uniform Stan- dards of Professional Appraisal Practice require an appraiser to protect the confidential nature of the appraisal-client relationship. I am not able under the constraints of my profession to discuss the appraisal with John Blomfield or other parties working for or representing [appellant], unless GSA authorizes me in writing to discuss the appraisal with those parties. Declaration of Mr. Alfred Ferrarra (Ferrarra Declaration) (Mar. 8, 1996) at 2 ( 7-9). Mr. Ferrarra also stated that in January and February of 1996, Mr. John Blomfield, an officer of appellant, called Mr. Ferrarra and sought his testimony on appellant's behalf. Fer- rarra Declaration at 2-3 ( 10, 13). Mr. Ferrarra explained to Mr. Blomfield his obligation of confidentiality to GSA and stated that he could not offer his services to appellant with regard to the appraisal he prepared for GSA or prepare another appraisal for appellant, without the approval of GSA. Id. at 3-4 ( 11, 14). The Appraisal Institute has developed a code of ethics for appraisers. Canon Four of that code provides that a member or affiliate must not violate the confidential nature of the ap- praiser-client relationship. Respondent's Opposition, Exhibit L at A-6. Ethical Rule 4-1 provides that it is unethical to disclose the analysis, opinions, or conclusions of an appraisal to anyone other than (a) the client and those persons specifical- ly authorized by the client to receive such information; (b) third parties, when and to the extent the member or affiliate is legally required to do so by statute, ordinance or order of a court; and (c) the duly authorized committees of the Appraisal Institute. Id. at A-7 ( 4-1). Discussion Respondent maintains that Mr. Ferrarra should not be re- quired to testify either in discovery or at trial because he is a non-testifying expert witness, as defined by Federal Rule of Civil Procedure 26(b)(4)(B): Mr. Ferrarra is a non-testifying expert witness re- tained by respondent in anticipation of litigation; therefore, in accordance with Federal Rules of Civil Procedure Rule 26(b)(4)(B), appellant may not depose Mr. Ferrarra. Moreover, it would be unfair to allow appellant to use Mr. Ferrarra as an expert witness, thereby benefitting from the efforts and expense in- curred by respondent in preparing its case. Respondent's Opposition at 1. Appellant argues that by releasing Mr. Ferrarra's report, respondent waived the protection of the rule for both the report and any testimony by Mr. Ferrarra. Board Rule 15 is analogous to Federal Rule 26; it does not, however, contain procedures for discovery from retained expert witnesses or non-testifying experts as are found in Rule 26(b)(4)(B). In such a circumstance, we rely on the Federal Rules of Civil Procedure for guidance. Board Rule 1(c),(d); Elden-Rider Inc. v. General Services Administration, GSBCA 8643- R, 92-2 BCA 25,005, at 124,623. We agree with respondent that appellant's deposition of Mr. Ferrarra would not be allowed under Rule 26(b)(4)(B)and that the same policy considerations prevent appellant from calling Mr. Ferrarra as its witness at the hearing. Rule 26(b)(4)(B) provides as follows: A party may, through interrogatories or by deposition, 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. One purpose behind this limitation of discovery is to encourage each party to thoroughly prepare its case, rather than to allow one party to take advantage of the other side's pre- trial preparation. 8 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure Civil 2032 at 445 (2d ed. 1994). A second purpose is to avoid the opposite side being able to discover the opposing counsel's trial strategy with the non- testifying expert. Id. A third purpose is to eliminate the unfairness of one side being able to extract the expertise of an adversary's expert without having to underwrite the initial costs or long-range expense of retaining or consulting with that expert. Pearl Brewing Co. v. Schlitz Brewing Co., 415 F. Supp. 1122, 1138 (S.D. Tex. 1976). The salutary purpose of the rule is illustrated by the very events in this case. For certain issues, appellant intended to rely on Mr. Ferrarra, rather than prepare its own expert; appel- lant now has to hurriedly prepare its presently retained expert, or new experts, on those issues. Appellant's officer, Mr. Blomfield, sought to secure Mr. Ferrarra as an expert witness for appellant, apparently after respondent withdrew Mr. Ferrarra as an expert witness. Mr. Blomfield's activities in this regard put Mr. Ferrarra in an ethically uncomfortable position. A party may designate a person as an expert, and change its mind; that person then becomes a non-testifying expert subject to the protection of Rule 26(b)(4)(B).[foot #] 1 See Durflinger v. Artiles, 727 F.2d 888, 891 (10th Cir. 1984); Ross v. Burlington Northern Railroad Co., 136 F.R.D. 638, 639 (N.D. Ill. 1991). Appellant is wrong as to the scope of the waiver. GSA's release of Mr. Ferrarra's appraisal report waived the protection as to the report, not to testimony by Mr. Ferrarra. Donald C. Hubbs, DOTCAB 2012, et al., 89-2 BCA 21,740, at 109,404 (Feder- al Highway Administration could use test results produced to appellant's testifying expert by appellant's non-testifying expert, but could not conduct depositions of non-testifying expert); Eliasen v. Hamilton, 111 F.R.D. 396, 401 (N.D. Ill. 1986). Board Rule 22 provides that the Board "may exclude relevant evidence to avoid unfair prejudice, confusion of the issues, undue delay, waste of time, or needless presentation of cumula- tive evidence." This rule is similar to Federal Rule of Evidence 403. Under that rule, trial judges have discretion to exclude evidence for the reasons stated in the rule, reviewable only for abuse of discretion. In Re Brooklyn Navy Yard Asbestos Litiga- tion, 971 F.2d 831, 840 (2d Cir. 1992). Courts and boards have applied the policy underlying Rule 26(b)(4)(B) to bar trial testimony, although that rule addresses discovery, not trial testimony. In one medical malpractice case, the court struck two physicians as defendant's trial witnesses when it was revealed that the experts had been initially consult- ed by plaintiff as experts. Healy v. Counts, 100 F.R.D. 493 (D. Colo. 1994). In another case, the appeals court sustained a trial court's exclusion of testimony by defendant's expert physician for the discovery abuse of Rule 26(b)(4)(B). The physician defendant sought to be called had initially been retained by plaintiff. Durflinger, 727 F.2d at 891. One board of contract appeals also excluded the facts and opinions of a non-testifying expert from the appeal record to "carry out the dual intent of Rule 26(b)(4)(B) and the cases decided under it." Hubbs, 89-2 BCA at 109,405. ----------- FOOTNOTE BEGINS --------- [foot #] 1 Appellant does not claim a need for Mr. Ferrarra's discovery or testimony based on the "exceptional circumstances" provision of the Rule. ----------- FOOTNOTE ENDS ----------- For the reasons stated above, I conclude that appellant's use of Mr. Ferrarra as a witness would be unfairly prejudicial to both respondent and Mr. Ferrarra. Appellant's motion to call Mr. Ferrarra as a witness, either in its case in chief or rebuttal, is therefore DENIED. Appellant will, however, be able to submit into the record the complete version of Mr. Ferrarra's report that GSA had released to appellant. _________________________ ANTHONY S. BORWICK Board Judge