Opinion
FSTCV166028856S
08-30-2018
John BORG v. Lynne CLOUTIER
UNPUBLISHED OPINION
POVODATOR, JTR
Background/Context of the Dispute
In its effort to "clean up" all outstanding issues remaining in this matter, over the course of the last several weeks, the court has issued three memoranda of decision plus at least one relatively-lengthy order directly into the e-filing system (addressing the plaintiffs’ objection to the defendant’s amended bill of costs, in turn filed by order of the court after argument relating to the initial bill of costs). The defendant has pointed out that the court "missed" one outstanding matter- this motion (# 273.00), filed by the defendant, seeking to compel the plaintiffs to pay for the time expended by the defendant’s expert in appearing (arguably unnecessarily) in court in response to a subpoena that had been issued by the plaintiffs.
An order had been entered on the motion, and thereby gave a superficial appearance- if the record were not examined more closely- that the motion had been addressed by the court.
The factual context for this motion does not appear to be in dispute to any material extent, and is summarized in the defendant’s motion:
On October 27, 2017, the defendant disclosed Michael Veronese of Integrated Security Group as an expert witness (entry # 198). The [plaintiffs] never noticed or conducted Mr. Veronese’s deposition. On January 2, 2018, Mr. Veronese received a subpoena from the [plaintiffs] to attend and testify at trial the next day, January 3, 2018. On January 3, 2018, Mr. Veronese traveled to and attended the first day of trial but was never called by the plaintiffs and was released mid-afternoon.
The defendant contends that, pursuant to General Statutes § 52-260(h), it was the obligation of the plaintiffs to pay the witness his fees, and to the extent that he had been disclosed as an expert, he is/was entitled to fees as an expert rather than as an "ordinary" witness.
"The fees of any witness summoned by a party other than the state to testify in any action or proceeding shall be paid to the witness by such party on the day of attendance of such witness."
The plaintiffs filed an objection (# 278.00), identifying several bases for the claim that they were not obligated to pay anything other than statutory witness fees applicable to any fact witness, and given the multi-faceted quality of the objection, it perhaps is helpful to recite the entire objection:
The Plaintiffs subpoenaed Mr. Veronese to testify as a fact witness. Despite being disclosed by the Defendant, he was not mentioned at the general voir dire. Mr. and Mrs. Borg, having made a specific note of this omission, instructed counsel to subpoena him. Mr. Veronese was subpoenaed to testify on January 3, 2018. A copy of the subpoena was emailed to Defendant’s counsel on January 2, 2018. No objection was filed (or made). No email response was made. No protest was issued by the witness. Mr. Veronese appeared in court and sat in the back on the "Defendant’s" side. He engaged with both counsel. After the lunch break on January 3rd, Defendant’s counsel advised that Mr. Veronese would be called during the Defendant’s case. Accordingly, the Plaintiffs did not need to call him out of turn. Plaintiffs’ counsel acceded to this request and Mr. Veronese was discharged for the day. From his invoice, it appears he chose to stay for the bulk of the day.
The Defendant now moves for the Plaintiffs to pay for Mr. Veronese’s time. This is transparent and improper cost shifting that should not be permitted by the court.
First, at no time was the witness called as an expert. The purpose of his (then proposed) testimony was as a fact witness.
The Defendant’s citation regarding the expert witness testimony is [inapposite].
Second, the Defendant simply waited too long and waived her rights with respect to this issue. The subpoena was emailed to Defendant’s counsel. He did not respond. The witness appeared in court. No motion was made nor any objection levied. The witness sat in court half the day. No motion or objection was made. There certainly was time before the start of evidence, at the morning break, and again at the lunch recess to address this issue. Meanwhile, Mr. Veronese’s bill was increasing by the minute. This could not possibly have been "accidental."
Lastly, this issue- if the court deems it to be a proper request for reimbursement- is appropriate for the taxation of costs procedure under the General Statutes, specifically Section 52-257 et seq. Given that there are post-trial motions being prepared (and perhaps an appeal), the request- if proper- is premature. Additionally, a hearing will be necessary as to the Defendant’s delay and the reasonableness of the witness charges.
(With respect to the last sentence of the objection, there subsequently was a hearing, although the court does not recall any evidence proffered as to reasonableness of the charges (hourly rate), but the plaintiffs have argued that the witness could/should have left earlier such that fewer hours would be reasonable.)
Discussion
The court, of course, is familiar with the hotly-contested and personal nature of this dispute between neighbors, and this decision is being written against a backdrop of a jury verdict finding for the defendant with respect to all claims asserted by the plaintiffs, and finding for the defendant with respect to her claims against the adult plaintiffs. The jury awarded to the defendant a substantial monetary award, and the court recently entered an order for permanent injunctive relief in favor of the defendant.
In their objection, after the plaintiffs recited the somewhat more detailed background (from their perspective), the plaintiffs state that "[f]irst, at no time was the witness called as an expert. The purpose of his (then proposed) testimony was as a fact witness" (emphasis in original). In effect, the plaintiffs are claiming that because they did not intend to ask the witness for any opinions he might have generated in the course of his involvement with this case, the witness properly should be characterized as a "fact witness."
In a perhaps literal sense, the plaintiffs might be perceived to be correct (at least as far as represented intentions), as their position is that they would only ask the witness about what he had done in the course of his preparation for rendering an opinion- his investigation, gathering of potential evidence, etc. Conversely, however, the concept of a "fact witness" usually is applied to someone with personal knowledge of the facts and events involved in the actual occurrence/dispute, rather than someone whose only involvement had been his/her engagement to render an expert opinion with the proffered evidence being everything except the actual opinion. (A professional being sued is a fact witness insofar as testimony is sought about what he/she had done in the course of providing professional services (such as was attempted in Tiplady (footnote 3) ), and probably opinions formed during that course of rendering professional services, but generally not as to opinions formed after rendition of services had concluded, e.g., as a response to the litigation, and other litigation-related activities.)
But see Tiplady v. Maryles, 158 Conn.App. 680, 683, 120 A.3d 528, 532 ; cert. denied, 319 Conn. 946 (2015), where examination of defendant physician, ostensibly as a fact witness, eventually crossed the line into expert testimony, and restrictions on the range of cross examination based on supposed status as fact witness was held to have been reversible error.
While distinguishable, our appellate courts have recognized that in limited circumstances, a non-party expert can be compelled to provide evidence in support of an adversary.
In Redding Life Care, LLC v. Town of Redding, 174 Conn.App. 193, 165 A.3d 180 (2017), the court recognized the existence of a qualified expert privilege, relating to compelled testimony from an expert. The context in which this dispute arose was different from the present one in a number of significant respects (especially, the expert had rendered an opinion in prior and technically-unrelated litigation, and was being asked to testify as to those opinions), but much of the analysis has bearing on this dispute.
In reaching this conclusion, the court in [Hill v. Lawrence & Memorial Hospital, Superior Court, judicial district of Hartford, Complex Litigation Docket, Docket No. HHD-X04-CV-4034622-S (June 30, 2008) (45 Conn.L.Rptr. 789] also drew from the reasoning of the Wisconsin Supreme Court in Burnett v. Alt, supra, 224 Wis.2d 72. In Alt, the court held that a qualified unretained expert privilege existed under Wisconsin law, such that an expert could not be compelled to serve as a witness, absent a compelling need for his or her testimony. Id., 89. That court noted that "[u]nlike factual testimony, expert testimony is not unique and a litigant will not be usually deprived of critical evidence if he cannot have the expert of his choice." (Internal quotation marks omitted.) Id. The court determined that the compelling need requirement would properly strike a balance "between the right of expert witnesses to be free from testifying against their will and the needs of the court and litigants for testimony." Id., 88. 174 Conn.App. 204.
Twenty years earlier, in Lane v. Stewart, 46 Conn.App. 172, 177, 698 A.2d 929 (1997), the court had stated:
We hold that where one party has disclosed an expert witness pursuant to Practice Book § 220(D), and that expert witness has either been subsequently deposed by the opposing party, or the expert’s report has been disclosed pursuant to discovery, then either party may call that expert witness to testify at trial. This holding follows the rule adopted in other jurisdictions. See, e.g., Kaufman v. Edelstein, supra, 539 F.2d 811; Granger v. Wisner, 134 Ariz. 377, 656 P.2d 1238 (1982); Fenton v. Thayer, 127 N.H. 702, 506 A.2d 319 (1986); Even though the trial court improperly granted the defendant’s motion to quash the subpoena duces tecum served on Shanok, we do not reverse the judgment of the trial court because we conclude the error was harmless.
The defendant relies on Ward v. Ramsey, J.D. New Haven, NNHCV 095028840S, 2012WL 3264265 (July 19, 2012) , and cases cited therein (including Lane ). Although the court discussed utilization of an adverse party’s disclosed expert, the court did not actually reach the issue of admissibility (much less cost), particularly with respect to any already-disclosed opinions. To the contrary, the court seemed to assume, at least for purposes of its analysis, that one party (the plaintiff) would be allowed to utilize an adverse party’s (the defendant’s) disclosed expert, if the expert already had formulated an opinion useful to the plaintiff. For purposes of the pending motion for summary judgment, however, the court would not allow the plaintiff to surmise that the expert might have an opinion favorable to the plaintiff, sufficient to defeat the motion for summary judgment, absent a report or deposition testimony or some other non-speculative basis for believing that the expert was to testify.
The court does not believe that any further analysis of existing cases (including Cavallaro v. Hospital of Saint Raphael, 92 Conn.App. 59, 882 A.2d 1254 (2005), cited by the court in an earlier order) would be helpful, because none of the cases identified by the parties or by the court focus on the actual issue at hand. All of the cases identified seem to have involved something in the nature of an in-advance ruling by the court- will a party be allowed to call as a witness or otherwise utilize the expertise of an expert identified by an adverse party. The issue before this court is not whether, had the matter been properly and promptly presented to the court, it would have authorized the plaintiffs to compel testimony from the expert. Rather, the issue is whether the plaintiffs, having issued a subpoena to the expert compelling his attendance, which the witness properly honored (absent a motion seeking relief), were responsible for the costs of his time traveling to and from court, and waiting in court until he was notified that he was not needed. Presumably, the witness does not care whether, in retrospect, it had been proper for the plaintiffs to compel his attendance via subpoena; whether proper or not, the witness presumably wants to be paid for his time and the outcome of a hypothetical motion that could have been filed is of no direct concern to the witness.
The court will now address the factual contentions of the plaintiffs, effectively arguing that what was done was proper, particularly in the absence of any objection or motion filed by or on behalf of the witness or by the defendant. This requires starting with an analysis of the events. The plaintiffs contend that the failure of the defendant to identify the witness during voir dire triggered a concern on the part of the named plaintiff, personally, that the defendant might not use that expert, and that he therefore directed counsel for the plaintiffs to issue a subpoena.
On a technical level, the court notes that the issuance of legal process is not a ministerial duty, not something to be done simply because a client has directed it to be done. As a Commissioner of the Superior Court, some level of professional judgment as to propriety and necessity is appropriate. Sharkiewicz v. Smith, 142 Conn. 410, 114 A.2d 691 (1955).
Further, the timing is at least suspect. The trial was scheduled to start on January 3, 2018, essentially the first available trial date after the holiday "break" (January 2, 2018, a Tuesday, being a short calendar day given the legal status of January 1, 2018 as a holiday, and the general practice in the Judicial District of Stamford that civil jury trials do not proceed on short calendar days). Jury selection had concluded prior to the "break" (more than a week prior to the break, according to court records) such that nothing of consequence could have happened in the weeks preceding January 2, 2018. The plaintiffs’ recitation does not disclose the time of day that the subpoena actually was served on the witness, but the subpoena itself indicates that it was signed by counsel on January 2, 2018. The plaintiffs recite that a copy was sent to counsel for the defendant on January 2, 2018 (time of day not specified), such that at something approaching (if not at) the last moment, the defendant was given notice of a subpoena, and the witness also may not have been served until near the last possible moment.
Assuming that the witness had notice at or prior to mid-day on January 2, 2018, such that he theoretically might have had at least a limited opportunity to file a motion to quash or for protective order, that implicates interrelated issues: Did he know he had a right to do so; the economics of retaining an attorney at the last minute for advice on the issue; and the possibility if not likelihood of a belief that he would be paid for his time, given that his only involvement with the case was as a retained (paid) expert. Attached to this motion is an invoice seemingly dated January 18, 2018, directed to counsel for the plaintiffs, reflecting the belief that the plaintiffs would compensate him for his time.
This must be contrasted with the inferential lack of any need for the witness to be required to attend court at 10:00 AM on January 3, 2018. The plaintiffs presumably knew the identity of their first witness prior to issuance of the subpoena (again, the subpoena attached to the motion indicates that it was signed on January 2), and unless this witness was intended to be the first witness, there was no reason to compel him to be in court at that time. (He wasn’t called as the first witness.) The court notes that it is common practice, although not required, for a party issuing a subpoena to put a note on the subpoena itself or recite in a cover letter that the witness should call the issuer’s office for more specific information as to when the witness actually would be needed in court, precisely to avoid unnecessary waiting time by a witness (not always avoidable). Unless counsel for the plaintiffs had a reasonable expectation that the witness might be called that first day, there was no reason to have the witness appear in court that day at all, and especially no reason to require him to stay until past the lunch break, as stated in the plaintiffs’ own recitation.
When the witness has some connection to the adverse party, the note/message often will indicate that the witness should contact counsel for the adverse party for further details.
As a factual matter, the first witness called on the first day of trial, was a neighbor whose property abutted the defendant’s- her testimony was used in part to establish a background for the neighborhood and the prior dispute/litigation relating to location of the right of way, as well as somewhat establishing "who sided with whom" (Including the witness’ actual assistance to the defendant with respect to allowing a camera to be installed on her property). Her testimony extended beyond the lunch break.
The next witness was the attorney who had represented the trust that owned the property on which the plaintiffs lived, and presumably he was going to be the second witness regardless of whether the defendant’s expert was or was not going to testify on behalf of the plaintiffs- he was ready to be called, after the first witness finished testifying after the lunch break.
Returning briefly to the cases cited by the parties and the court, two of the factors considered by the courts in ruling on motions relating to calling an adverse party’s expert witness are the availability of the information and/or opinion to the party seeking to call that witness, and the need for the information by that party. Here, particularly given the absence of any intention of seeking to elicit any opinions, the information readily was available to the plaintiffs either through their own actually-engaged expert or through an expert they could have engaged or through the parties themselves. The primary technical issues in the plaintiffs’ case about which the witness could testify related to placement of security/surveillance cameras by the defendant; the field of view of those cameras; digital versus optical zoom capabilities, if any; physical repositioning of the cameras to change the field of view, assuming a lack of ability to pan and tilt; the correlative ability to adjust the field of view of the cameras by virtue of possible ability to pan and tilt; and the recording capabilities of the system. The plaintiffs hired their own expert in this case relating to the defendant’s security system (see expert disclosure, # 167.00), and there is nothing suggesting any more-advantaged much less unique ability of the defendant’s expert to obtain information (observe the equipment, take measurements and photographs, etc.). Perhaps cynically, the only advantage to utilizing the defendant’s expert (if he were not going to offer opinions on behalf of the defendant, as the plaintiffs seemed to think was the case) would be that by issuing a subpoena to that expert, no fee had to be paid for his attendance (other than the statutory fee) whereas their own expert likely would require payment for his time in court.
The disclosed nature of his opinion related to the suitability of the system for the purposes intended, and the plaintiffs claimed no intention of inquiring as to opinions.
To a limited extent, the plaintiffs are correct that there is at least arguably some responsibility on the part of the defendant for failing to bring the situation to the court’s attention, if not prior to January 3 than at least on January 3 when it became apparent that the witness was in the courtroom, pursuant to a subpoena from the plaintiffs. At that point, of course, the court would have been faced with an at-least-partial fait accompli quality- the witness had had to cancel any other obligations he might have had in order to make time to come to court, and actually come to court (necessarily implicating return travel time). Further, the defendant would have had to have been prescient to know that the plaintiffs had no expectation of paying the expert for his time, even when apparently directly billed by the expert. (At least if he were to be paid, there would be less concern about the legal niceties of whether it had been appropriate to have issued the subpoena in the first instance, and the court cannot ignore the likelihood that the witness had not protested precisely because he expected to be paid.)
The court will repeat the final contention of the plaintiffs:
Lastly, this issue- if the court deems it to be a proper request for reimbursement- is appropriate for the taxation of costs procedure under the General Statutes, specifically Section 52-257 et seq. Given that there are post-trial motions being prepared (and perhaps an appeal), the request- if proper- is premature. Additionally, a hearing will be necessary as to the Defendant’s delay and the reasonableness of the witness charges.
For comparison, the court will repeat the corresponding assertion of the defendant:
Pursuant to C.G.S. § 52-260(h), [t]he fees of any witness summoned by a party other than the state to testify in any action or proceeding shall be paid to the witness by such party on the day of attendance of such witness.
For the sake of completeness, the court notes that some of the cases identified earlier (or in cases cited therein), and somewhat implied in the defendant’s motion, is possible applicability of Practice Book § 13-4. When the issue of utilization of an adverse party’s expert arises in the context of discovery, Practice Book § 13-4(c)(2) makes the party seeking testimony from the witness via a deposition presumptively responsible for the reasonable cost of the witness’ time in testifying (plus travel).
Unless otherwise ordered by the judicial authority for good cause shown, or agreed upon by the parties, the fees and expenses of the expert witness for any such deposition, excluding preparation time, shall be paid by the party or parties taking the deposition. Unless otherwise ordered, the fees and expenses hereunder shall include only (A) a reasonable fee for the time of the witness to attend the deposition itself and the witness’ travel time to and from the place of deposition; and (B) the reasonable expenses actually incurred for travel to and from the place of deposition and lodging, if necessary.
The "problem" is that none of these statutory or rule provisions is applicable here.
To start, this is not a discovery issue, such that Practice Book § 13-4 is not directly applicable. The court used the modifier "directly" because in Levesque v. Bristol Hospital, Inc., 286 Conn. 234, 255-63 (2008), the court used the then-existing provisions of Practice Book § 13-4 in determining the proper scope of an award of reasonable expert fees under General Statutes § 52-260(f) as a taxable cost.
Note that this in turn has created a potential separate issue if General Statutes § 52-260(f) were in issue, because the same year that the case was decided, the relevant provisions in Practice Book § 13-4 were substantially re-written, such that the language relied upon in Levesque was materially different. Is Levesque forever fixed as to how to apply § 52-260(f) based on the "old" version of Practice Book § 13-4, or is it dependent on the "current" version of the rule at the time of subsequent attempted application of the statute? (Specifically, the language corresponding to the quote, above, from the current version of Practice Book § 13-4(c)(2), was substantially different at the time of the trial and appeal in Levesque .)
Both parties have referred to General Statutes § 52-260 or more generally to the other statutes set forth in Chapter 901 of the General Statutes. The court believes that both sides have misapprehended the extent to which Chapter 901 governs- or is applicable to- this dispute.
The defendant refers to § 52-260(h), which requires that a witness fee be paid no later than the date of attendance, but the statute does not explicitly state the amount of the fee or how it is to be determined. In other words, the statute relates to the timing of the obligation to pay the statutory fee due the witness, but not the amount of such payment (except to the extent that it inferentially refers to the statutorily-determined fee that the witness is entitled to receive).
The plaintiffs claim that the fee to be paid should be treated as a taxable cost. It is well established that the experts for whom taxable costs are allowed in excess of "ordinary" witness fees are limited to the enumerated fields of expertise set forth in the relevant statutes- especially, § 52-260.
Miller [v. Guimaraes, 78 Conn.App. 760, 829 A.2d 422 (2003) ] is dispositive of this issue. In that case, [this court] held that the trial court’s award to homeowners of $1,000 as taxable costs for an expert who was an attorney was improper in an action to recover damages under CUTPA because there was no statutory authority under General Statutes § 52-260 for such an award ... [Section] 52-260, relating to witness fees, sets forth the court’s authority to award expert witness fees in civil litigation. Within the statute, there is an enumeration of the categories of experts entitled to a discretionary award of expert witness fees ... Expert witness fees for roofing consulting firms are not included within that enumeration. (Citations omitted; internal quotation marks omitted.) Centimark Corp. v. Village Manor Associates Ltd. Partnership, supra, 113 Conn.App. at 540-41, 967 A.2d 550. Similarly, § 52-260 does not provide expert witness fees for construction experts. Accordingly, we conclude that the court’s awarding the plaintiff expert witness fees for Spurrell, the plaintiff’s construction expert, was improper. (Internal quotation marks and footnote, omitted.) Taylor v. King, 121 Conn.App. 105, 133-35, 994 A.2d 330, 347-48 (2010)
(See, also, Arnone v. Town of Enfield, 79 Conn.App. 501, 530-34, 831 A.2d 260 (2003).)
If an expert profession is not identified in § 52-260- especially subsections (f) and (g)- and there is no other identified basis on which to award expert fees, an expert witness is relegated to the same basis for determining fees as would be a non-expert or "ordinary" witness- essentially nominal statutory fee for appearance in court plus mileage.
See, e.g., General Statutes § 52-257(b)(4), allowing up to $225 for a title search.
The plaintiffs further compound the problem by suggesting that the issue can or should be addressed in the context of taxation of costs. Quite simply, the defendant could not submit a bill of costs encompassing a witness called by the plaintiffs pursuant to a subpoena issued on behalf of the plaintiffs, for the seemingly self-evident reason that the defendant did not incur any costs in the process of summoning the witness, and has no responsibility to pay for the appearance of witnesses summoned by the plaintiffs. No authority is cited for the implied proposition that the defendant should pay for the time of a witness subpoenaed by the plaintiffs (subject to reimbursement as taxable costs), and there appears to be no logical rationale for such an approach.
All of the foregoing leads to a fundamental threshold question: What authority (or at least role) can the court play, given the lack of any motion or objection having been filed prior to the witness appearing, and the lack of identified statutory authority to award/impose an expert-type witness fee, in a technical/statutory sense, absent applicability of a statute such as § 52-260? The court could attempt to "decide" a hypothetical motion or objection, as if one had been filed prior to the witness appearing, but that would seem to violate the proscription against advisory opinions (a jurisdictional bar to such conduct). As already noted, this is not an issue of costs to be taxed, not an issue of conditions for compelling compliance with a subpoena, and not an issue of whether the witness could have been compelled to testify (especially because the plaintiffs never actually called him as a witness while he was in court). This is not a situation within the broad discretion of the court to set a reasonable expert fee for purposes of a deposition (Practice Book § 13-4). It is only a slight oversimplification to state that this case presents an arguably-unique situation where the court is being asked to determine the amount that a party must pay for attendance at court of its own witness (not in connection with a determination of the extent to which it might be a taxable cost, passed along to the adversary).
Two imperfect analogies come to mind. The first is the situation of a court reporter/monitor being asked to provide a transcript, without perhaps having been explicit (in advance) about the payment terms. Having provided a service to a litigant, there is a more-than-reasonable expectation of being paid for the time and effort provided, in response to a request from counsel. The obligation to pay might arise from particular litigation in which the transcript had been generated, but the remedies (and consequences) that might be available or applicable if payment is not made probably would be determined to be independent of that existing legal proceeding itself, and therefore subject to resolution in a different forum/proceeding.
The other analogy is essentially the rationale for the seminal decision in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947). Although Hickman addressed discovery rather than testimony at trial, the rejection of the notion that one party can allow another to "do the work" and then attempt to take advantage of that work, essentially for free, seems transferable to the current situation. To the extent that the defendant’s expert’s report or other materials (e.g., photographs?) already were in possession of the plaintiffs as a consequence of discovery, they were free to use those materials at trial, to the extent admissible without the expert’s presence, but it is another matter to suggest that the expert can be conscripted to the service of the plaintiffs, based on his work as an expert for the defendant.
In effect, then, the parties have made arguments supporting their respective positions, but have not addressed or identified the source of possible authority of the court to adjudicate the amount an expert witness can command as compensation outside the context of Practice Book § 13-4 where the court has general authority to determine a reasonable fee for attendance at a deposition and outside the scope of § 52-260 or any other statute authorizing this type of expert to obtain a taxable witness fee in excess of that generally applicable to non-expert witnesses (or otherwise authorizing the court to establish a reasonable fee). However the court may feel about the witness’ entitlement to be paid for his time, the parties have not identified a basis on which the court can order the plaintiffs to pay what is due the witness, in the context of this proceeding, at this time.
For example, if a timely motion for protective order had been filed, it is possible that the court might have made payment to the expert for his time, a condition of any requirement that he answer questions in response to the plaintiffs’ subpoena. While it is common practice for an attorney in litigation to file a motion for protective order or to quash on behalf of a witness not represented by the attorney, there is a question of whether counsel for the defendant has standing to pursue a request, on behalf of the expert, that the plaintiffs be ordered to pay the expert for his time.
Conclusion
The court does not know the ultimate motive(s) for plaintiffs’ issuance of the subpoena- was there really something that this witness could provide that was not otherwise available to the plaintiffs (and especially not available through an expert that they had or could have retained)? Was it an attempt to obtain the product of the defendant’s expert’s work without having to pay for it (payment directly to the subpoenaed witness or to their own expert)? Was there a bona fide concern that the defendant might have been attempting to conceal unfavorable evidence that might be elicited, were he to testify on her behalf? Those might have been issues to consider before the witness appeared, or perhaps even while he was in court, but in a post-verdict setting, there has been no identified basis for the court to determine that the plaintiffs are required to pay the full amount claimed, or any portion thereof.
The record reflects what can only be characterized as a liberal if not aggressive use of subpoenas- there were 19 appearances filed on behalf of town police officers and other town employees/officials, in connection with efforts to obtain relief relating to subpoenas issued by the plaintiffs to those individuals.
In connection with establishing a reasonable fee for an expert for a deposition, under Practice Book § 13-4, the court has observed that the price charged by an expert to someone choosing to use his/her services, is a market issue that generally does not involve the court. It is only to the extent that the adverse party is attempting to obtain discovery from the party hiring the expert by way of deposition of the expert, or the adverse party is being compelled to absorb part or all of the cost of trial testimony as a taxable cost, that the court gets involved in any obligation to pay an expert’s fees (applying a rule of reasonableness). Free-standing court involvement as to the cost of an expert, intended to be used by a party for its own purposes, is not the subject of any identified authority, especially in an after-the-fact context. (As already suggested, it could be a consideration or condition in connection with some issue properly before the court, such as a motion for protective order.)
Accordingly, the court denies the motion (or perhaps it might be more appropriate to dismiss the motion, given the perceived lack of authority of the court to act as requested).