In Gray v. 3M, plaintiff brought a products liability lawsuit alleging he developed silicosis as a result of defective 3M 8710 respirators. After a nine-day trial, the jury returned a defense verdict.

Plaintiff appealed, alleging the trial court should have excluded 3M’s expert industrial hygienist. Plaintiff argued the expert failed to bring certain studies to his deposition that he later testified about at trial. Here are the core facts:

  • Three months before trial, plaintiff noticed the expert’s deposition, attaching an exhibit titled “subpoena duces tecum” to the notice. One of the document requests was for the expert to bring all documents he intended to rely on at trial to the deposition. The expert was not formally served with a subpoena.
  • Neither defendant nor the expert objected to the “subpoena duces tecum” prior to the deposition.
  • The expert brought some of the requested documents to the deposition, but not the all of the studies that he would later testify about at trial. Plaintiff did not object at the deposition to the alleged failure to bring the studies.
  • After the deposition, plaintiff moved to exclude the expert from testifying about any studies and any new opinions based on studies that were not disclosed at his deposition. 3M opposed the motion, arguing that the expert was not properly served with a subpoena duces tecum and that the studies in question had been previously disclosed in prior related litigation. 3M did not object to plaintiff’s failure to formally serve a subpoena on the expert until the plaintiff moved to exclude the expert.
  • The trial court held several hearings on the motion. 3M offered to produce the expert for a second deposition and to produce the studies in question at the deposition. In an attempt to resolve the dispute, 3M also produced the expert’s report (even though one was not required under the Missouri Rules of Civil Procedure), offered to agree to continue the trial, and offered to pay the reasonable costs plaintiff would incur if the trial was continued. Plaintiff’s counsel rejected these offers, telling the court that plaintiff was in poor health and not interested in a continuance, and was ready for trial. The trial court denied the motion to exclude.

The Missouri Court of Appeals affirmed. The court pointedly observed that plaintiff “understood what was at stake by choosing to proceed to trial” without re-deposing the expert and “made a strategic choice” in rejecting the remedies of a second deposition and trial continuance offered by the trial court. Gray v. 3M Company, 2016 WL 3418607, *2 (Mo. Ct. App., June 21, 2016). However, the Gray court also cautioned parties to tread thoughtfully with issues of this sort:

“While Johnston may not have been properly subpoenaed…this court does not condone the actions of either party in handling the dispute. If 3M intended to take issue with Gray’s ‘subpoena duces tecum’ that was attached to the deposition notice it should have given Gray the professional courtesy of doing so before he went to Minnesota to take Johnston’s deposition. Similarly, and as the trial court noted, Gray should have raised the issue at the deposition or much sooner than a month before trial.”

Gray v. 3M Company, 2016 WL 3418607, at fn. 2.

Use of notices of deposition “duces tecum” is not an uncommon practice, and in many jurisdictions is expressly permitted for depositions of parties. The Gray case emphasizes the importance of being mindful of strict procedural compliance, timely objections and, ultimately, the need for counsel to balance zealous advocacy with professionalism and reasonable compromise in pursuit of the just determination of the case. Here, the defendant’s attempts to remedy the dispute likely made all the difference.

The full Gray decision can be found here.