Summary
imposing a "reasonable amount" of the expense defendant incurred for its own expert to review and critique the original expert
Summary of this case from Assaf v. Cottrell, Inc.Opinion
CIVIL ACTION No: 96-2262-EEO
July 30, 1998, Decided . July 30, 1998, Filed. July 31, 1998, Entered on the Docket
For SITHON MARITIME COMPANY, plaintiff: Lee M. Smithyman, Smithyman & Zakoura, Chtd., Overland Park, KS.
For SITHON MARITIME COMPANY, plaintiff: Michael G Chalos, Richard M Ziccardi, George J Tsimis, Chalos & Brown, New York, NY.
For HOLIDAY MANSION, defendant: Norman R. Kelly, Norton, Wasserman, Jones & Kelly, Salina, KS.
For MERCURY MARINE, defendant: Heather Suzanne Woodson, Stinson, Mag & Fizzell, P.C., Overland Park, KS.
For MERCURY MARINE, defendant: John C. Aisenbrey, Stinson, Mag & Fizzell, P.C., Kansas City, MO.
For MERCURY MARINE, defendant: Alex B Marconi, Patrick X Fowler, Snell & Wilmer L.L.P., Phoenix, AZ.
For MERCURY MARINE, cross-claimant: Heather Suzanne Woodson, Stinson, Mag & Fizzell, P.C., Overland Park, KS.
For MERCURY MARINE, cross-claimant: John C. Aisenbrey, Stinson, Mag & Fizzell, P.C., Kansas City, MO.
For MERCURY MARINE, cross-claimant: Alex B Marconi, Patrick X Fowler, Snell & Wilmer L.L.P., Phoenix, AZ.
For HOLIDAY MANSION, cross-claimant: Norman R. Kelly, Norton, Wasserman, Jones & Kelly, Salina, KS.
For HOLIDAY MANSION, cross-defendant: Norman R. Kelly, Norton, Wasserman, Jones & Kelly, Salina, KS.
For MERCURY MARINE, cross-defendant: Heather Suzanne Woodson, Stinson, Mag & Fizzell, P.C., Overland Park, KS.
For MERCURY MARINE, cross-defendant: John C. Aisenbrey, Stinson, Mag & Fizzell, P.C., Kansas City, MO.
For MERCURY MARINE, cross-defendant: Alex B Marconi, Patrick X Fowler, Snell & Wilmer L.L.P., Phoenix, AZ.
For MERCURY MARINE, counter-claimant: Heather Suzanne Woodson, Stinson, Mag & Fizzell, P.C., Overland Park, KS.
For MERCURY MARINE, counter-claimant: John C. Aisenbrey, Stinson, Mag & Fizzell, P.C., Kansas City, MO.
For MERCURY MARINE, counter-claimant: Alex B Marconi, Patrick X Fowler, Snell & Wilmer L.L.P., Phoenix, AZ.
For HOLIDAY MANSION, counter-claimant: Norman R. Kelly, Norton, Wasserman, Jones & Kelly, Salina, KS.
For SITHON MARITIME COMPANY, counter-defendant: Lee M. Smithyman, Smithyman & Zakoura, Chtd., Overland Park, KS.
For SITHON MARITIME COMPANY, counter-defendant: Michael G Chalos, Richard M Ziccardi, George J Tsimis, Chalos & Brown, New York, NY.
The court has before it Plaintiff-Sithon Maritime Company's Motion for Leave to Substitute its Designated Expert Witness and to File an Amended Rule 26 Expert Witness Disclosure Statement (doc. 226). Pursuant to Fed. R. Civ. P. 26, it seeks permission to substitute Marc Vianello for Robert Goldstein as the designated witness to provide expert testimony in support of the damages plaintiff claims. It contends Mr. Goldstein will not be available to provide further services as a witness, given the deadlines the court has set. Co-defendant Mercury Marine opposes the motion upon grounds it would suffer prejudice by the proposed substitution; inasmuch as it has spent a substantial part of $ 37,000 for its own expert witness to review and criticize the expert opinions of Mr. Goldstein.
The court will grant the motion upon the condition that plaintiff reimburse Mercury Marine for part of the expense it has incurred for its expert witness, Larry Morriss. By the affidavit of Robert Goldstein, plaintiff has substantiated its contention that he will be unavailable for further service, given the scheduling and settings in this case. The court does not accept the contention that plaintiff has substituted Vianello merely as a ploy to avoid the criticism of Mr. Morriss. Nor can the court fault plaintiff for having already retained Vianello, given the forthcoming deadlines within which it must complete its expert disclosures and proceed to his deposition. This ruling does not mean, on the other hand, that the court will be inclined to allow the substitution of an expert witness without substantiated, good reason having been shown for doing so. To allow such substitution over objection without a showing of valid reason would indeed allow a party to substitute an expert merely to overcome the criticism of an opposing expert witness. That kind of process could go on endlessly, each party by successive substitutions seeking to finesse the criticism of the other.
Defendant has shown that it would incur some prejudice by the substitution; inasmuch as it has already incurred expense for its own expert to review and provide a written critique against the testimony of Goldstein. The court can cure that prejudice, however, by requiring plaintiff to reimburse defendant for a reasonable amount of such expense. Since the motion seeks relief to benefit plaintiff through no fault of defendant, the latter should not bear all the expense it has incurred. The affidavit of Patrick X. Fowler, attached to the response of defendant (doc. 230) to the motion, shows that defendant has incurred expense of approximately $ 37,000 for the services of Mr. Morriss and his firm and that, "Most of the work done by Mr. Larry Morriss and his colleagues at Coopers & Lybrand during that time period was directed towards preparing his Rule 26 report, dated May 2, 1998, in which he included his analysis and critique of Mr. Robert Goldstein's report." Pages 2 through 10 of his report of 11 pages constitute his "Critique of Mr. Goldstein's Analysis of Alleged Damages." On page 11 Morriss identifies his applicable rate as $ 250 per hour. Mr. Goldstein indicated his own hourly rate as $ 210. Given these facts, the court will require plaintiff as a condition of the substitution to reimburse defendant Mercury Marine $ 18,500 as reasonable expense attributable to the review and critique of the report of Mr. Goldstein.
In summary, the court sustains Plaintiff-Sithon Maritime Company's Motion for Leave to Substitute Its Designated Expert Witness and to File an Amended Rule 26 Expert Witness Disclosure Statement (doc. 226), subject to the condition of reimbursement of expense as herein stated.
IT IS SO ORDERED.
Dated in Kansas City, Kansas on this 30th day of July, 1998.
Gerald L. Rushfelt
United States Magistrate Judge