Opinion
Civil Action No. 03-4096-JAR
April 26, 2004
ORDER OF DISMISSAL AND ASSESSMENT OF COSTS
The parties filed a Joint Motion for the Court to Assess Costs of the Deposition of Plaintiff's Expert Dean Jacobson And Joint Motion for Dismissal With Prejudice (Doc. 50). The parties state that they intend that this dismissal with prejudice be a final adjudication of the merits of any and all claims made by Plaintiff against Defendant pursuant to Rule 41(a)(2).
This action stems from plaintiff's fall and injury from a ladder produced by defendant. At issue is whether Defendant must pay all of the anticipated deposition charges of Plaintiff's expert. Plaintiff has agreed that Defendant will only be responsible for two hours of preparation time, and the deposition time. Defendant objects to paying the expert's $300 hourly rate, which it contends is unreasonable. Defendant further objects to paying for two hours or preparation time and 5 hours of deposition time.
Defendant contends that but for the expert's material change of his opinion just 15 days before the deposition, Defendant's preparation time would have been minimal and the deposition would have taken about 1 1/2 hours. In his preliminary report dated January 2, 2004, metallurgist expert Dean Jacobson stated that plaintiff was using the subject ladder in a proper and safe manner and did nothing to cause to ladder to generate the failure of the right rail. Dr. Jacobson's report did not identify the industry standard, nor what publications he relied upon. On March 9, 2004, Defendant noticed up the deposition for March 26, 2004, intending to ask Dr. Jacobson about the industry standard, the publications he relied upon, and other requirements for expert testimony under the seminal Daubert case. On March 11, 2004, Dr. Jacoboson changed his opinion in a "continuing conclusions and opinions" report, which was provided to Defendant less than ten days before the deposition. Dr. Jacobson changed his theory of how the ladder failed, opining that it would fail only if the plaintiffs entire weight were on one rail of the ladder.
Daubert v. Merrell Dow Pharma ceuticals, Inc., 509 U.S. 579 (1993).
Under Fed.R.Civ.P. 26(b)(4)(C)(i) the court is to require the party seeking discovery to pay the expert a reasonable fee for time spent responding to discovery unless manifest injustice would occur. The Court does not find that Plaintiff acted in bad faith; rather Plaintiff complied with its duty of continuing disclosure and supplementation. On the other hand, this late, and quite material change in Dr. Jacobson's opinion, which in effect supported an assertion of comparative negligence, undoubtedly cost more preparation and deposition time. It also enured to Defendant's benefit, as Plaintiff notes, resulting in an agreed dismissal of this action.
Nevertheless, the rule requires that defendant pay a reasonable fee under these circumstances. Defendant points out that its expert, who has similar qualifications, charges $225 per hour of testimony, much less than Dr. Jacobson's $300 hourly rate; and that given that Dr. Jacobson's new report was prepared March 11, just 15 days before his deposition, his preparation time should have been minimal. This Court agrees. Dr. Jacobson had just authored a new report, materially changing his opinion. He should not have required two hours of preparation, given his very recent analysis and report, his memory and familiarity with this case should not have Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). required the preparation time necessary for someone who issued a report months before the deposition. In fact, he should have required very little preparation time. But for Dr. Jacobson's change of opinion, Defendant would not have spent 5 hours deposing him; Defendant estimates that the deposition would have been no longer than 90 minutes. On the other hand, Defendant did benefit from the change of opinion, despite having to spend a longer time deposing Dr. Jacobson. For these reasons, the Court will not order Defendant to pay any time for Plaintiffs preparation of Dr. Jacobson. The Court will order Defendant to pay for the five hours of deposition, but at the more reasonable rate of $225.00, for a total of $1125.00.
IT IS THEREFORE ORDERED that Defendant shall pay $1125.00 for costs of Plaintiffs expert Dr. Jacobson.
IT IS FURTHER ORDERED that this case is DISMISSED WITH PREJUDICE pursuant to Fed.R.Civ.P. 41(a)(2).