Opinion
Case No. 04-2584-RDR.
October 19, 2006
ORDER
The undersigned U.S. Magistrate Judge, James P. O'Hara, has been informed that all of the claims and issues in this case have settled, except for one item. It concerns the amount that the plaintiffs, Kim Reindl and Mary Joan Reindl, are obligated to pay the defendants, the City of Leavenworth, Kansas, Lee Doehring, James Bridges, Wayne Flewelling, Sean Goecke, and Nicholas Nordmann, as a result of the order filed by the undersigned on August 23, 2005. On October 19, 2006, at the request of the parties' respective attorneys, the undersigned held a telephone hearing to address the above-described issue. Plaintiffs appeared through counsel, Allen A. Ternent. Defendants appeared through counsel, Michael K. Seck. Messrs. Ternent and Seck acknowledged that the instant issue is non-dispositive within the meaning of 28 U.S.C. § 636 and agreed on behalf of their clients to submit the issue to the undersigned for clarification of his order and agree to be bound by such ruling. This is with the further understanding that, sometime within the next ten days, the parties will file a stipulation for dismissal with prejudice pursuant to Fed.R.Civ.P. 41(a)(1)(ii) and, concurrent with said filing, tender a proposed corresponding order of dismissal to the chambers of the presiding U.S. Senior District Judge, Hon. Richard D. Rogers.
Doc. 77.
In addition to the court's order of August 23, 2005 (doc. 77), and the statements of counsel made during the October 19, 2006, hearing, the court has considered the letters submitted by counsel in advance of the hearing. For benefit of the record, a copy of Mr. Seck's letter dated September 22, 2006 is attached to this order as Exhibit 1; a copy of Mr. Ternent's letter dated September 25, 2006 is attached to this order as Exhibit 2. For the reasons explained below, the court generally concurs with the positions taken by Mr. Ternent on plaintiffs' behalf.
The facts material to the issue now before the court are as follows. On August 8, 2005, plaintiffs filed a motion for leave to designate expert witnesses out of time. On August 23, 2005, the undersigned magistrate judge issued his order granting plaintiffs' motion on certain conditions. The relevant portions of that order are as follows:
Doc. 73.
Doc. 77.
Therefore, despite plaintiffs' failure to show good cause, the court will exercise its inherent discretion and grant plaintiffs' motion to designate expert witnesses out of time (doc. 73). However, in granting their motion, the court believes it entirely appropriate to place stringent requirements on plaintiffs.
. . . .
Defendants will incur additional expert witness expenses, certainly in the hundreds of dollars and perhaps as much as a few thousand, in asking their previously retained and disclosed experts to modify their reports to take into account issues that presumably will be raised by plaintiffs' experts. The court believes it manifestly fair to try to ameliorate defendants' prejudice as a result of plaintiffs' above-described failure to meet the terms of the scheduling order. Therefore, plaintiffs shall be responsible for defendants' additional expenses. By December 1, 2005, defendants shall provide plaintiffs with a bill of expenses incurred in revising the defendants' expert reports. Plaintiffs shall pay defendants for all such costs by December 15, 2005, and shall file a certificate of service with the court indicating that the fees have been paid.
Defendants shall also have the opportunity, should they so choose, to depose any experts designated by plaintiffs. These depositions shall take place by November 8, 2005. As the discovery period has closed, however, and since plaintiffs are at fault for these delays, plaintiffs shall not be allowed to take any further discovery in this case, including but not limited to deposing defendants' experts.
The court is sensitive to the fact that plaintiffs might not be in the financial position to pay for defendants' expert fees in connection with revising reports. Nevertheless, the court's granting of plaintiffs' motion is specifically and expressly contingent upon plaintiffs timely payment of these expenses. If plaintiffs do not pay timely defendants' additional expert expenses, the court will not hesitate to strike the expert designations served by plaintiffs.
Doc. 77 at 10-11 (emphasis in original).
Defendants assert that, in order to provide their experts sufficient information to update their reports, they needed to depose plaintiffs' experts, Dr. Peter Cristiano, who is located in Leavenworth, Kansas, and Edward Leach, who was located in Idaho. Thereafter, pursuant to the court's order, defendants filed their Notice of Bill of Expenses on November 30, 2005. Also on November 30, 2005, defendants sent plaintiffs' counsel a letter to which they attached an itemization and receipts of the expenses they had incurred. Plaintiffs promptly paid the bill ($7,555.51). However, plaintiffs now seek clarification of what expenses were intended by the court's ruling to be reimbursed. Plaintiffs have no objection to reimbursing defendants for the costs incurred for their experts to revise their reports ($1,915.00). But they do object to paying the attorney's fees and expenses related to the depositions of Dr. Cristiano and Mr. Leach ($5,640.51). Plaintiffs argue that these fees and expenses are normal and expected expenses of discovery to defendants and that they do not believe it was the intent of the court to require them to bear such cost. Plaintiffs further argue that to do so would constitute a "windfall" for defendants.
Doc. 82.
November 30, 2005 letter from defendants' counsel to plaintiff's counsel: Item 2. Invoice of Dr. Stephen Hamburger, dated October 6, 2005 — $316.25; Item 4. Invoice of Dr. Stephen Hamburger, dated October 12, 2005 — $1,306.25; and Item 6. Expert fees — Steve Ijames — $292.50.
November 30, 2005 letter from defendants' counsel to plaintiffs' counsel: Item 1. Deposition of Dr. Cristiano-court reporter fee — $307.75; Item 3. Dr. Cristiano deposition fee — $375.00; Item 5. Deposition of Edward Leach-court reporter fees — $357.50; Item 7. Attorney fees — $4,062.50; and Item 8. Leach deposition expenses (travel, airfare, etc.) — $537.76.
Upon review of the August 23, 2005 order, the court agrees that further clarification is warranted. For several reasons, the court agrees with plaintiffs that the language of the above-referenced order was not intended to require plaintiffs to pay the attorney's fees and expenses and related fees associated with deposing Dr. Christiano and Mr. Leach. Although the court's order did generally contemplate that defendants could depose plaintiffs' tardily disclosed experts if they so desired, the order expressly stated that the expenses in question were to relate to having defendants' previously disclosed experts revise the latter's reports to take into account the opinions of plaintiffs' experts, i.e., there is no language in the order which implied or from which it could reasonably be inferred that defendants would get to take "free" depositions of plaintiffs' experts. Indeed, under Fed.R.Civ.P. 26(a)(2), the operating premise is that an expert's disclosure should be detailed enough that a subsequent deposition of the expert is the exception, not the norm. Even assuming for the sake of discussion that defendants legitimately perceived that plaintiffs' expert disclosures were so deficient that as a practical matter the experts had to be deposed, the record confirms that defendants never made that known to the court before deposing those experts. And finally, the $7,555.51 claimed by defendants far exceeds what the court said in its order would be a reasonable remedial sanction ("hundreds of dollars" at the low end, and "perhaps as much as a few thousand" at the upper end). Therefore, out of the money previously paid by plaintiffs to defendants, within 11 days of the filing of this order, defendants shall return $5,640.51 to plaintiffs.
IT IS SO ORDERED.
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