G.C. v. South Washington County School District 833

Background

The plaintiffs alleged that South Washington County School District 833 and Dr. Keith Jacobus violated their rights under the Americans with Disabilities Act. They alleged that G.C., a student in the district, has Electromagnetic Hypersensitivity Syndrome and that the defendants failed to provide a meaningful accommodation. This order addressed only the defendants’ motion concerning expert-witness fees and sanctions.

The defendants retained Drs. Kenneth Foster and Joseph Rasimas. The plaintiffs retained Drs. Gunnar Heuser and Toril Jelter. The parties deposed one another’s experts. The defendants sought payment of their experts’ invoices, an order relieving them of responsibility for Dr. Heuser’s deposition fee, reimbursement of costs and fees connected with that deposition, and reimbursement of expenses incurred in bringing the motion.

Payment of the Defendants’ Expert Fees

Federal Rule of Civil Procedure 26(b)(4)(E) generally requires the party taking an opposing expert’s deposition to pay the expert a reasonable fee for responding to discovery, unless doing so would cause a manifest injustice. The court determined that the preparation time billed by Drs. Foster and Rasimas was reasonable. It also held that Dr. Rasimas could charge for the reasonable time he spent reviewing his deposition transcript for errors.

The court ordered the plaintiffs to reimburse Drs. Foster and Rasimas in full, for an aggregate amount of $8,791.00. The plaintiffs and their counsel were made jointly and severally liable, meaning each could be held responsible for the full amount.

Dr. Heuser’s Deposition Fee

The defendants argued that they should not have to pay Dr. Heuser’s deposition fee because his testimony and report were unreliable and he would have been excluded from testifying. The plaintiffs argued that his fees were reasonable even though they later withdrew him as an expert.

The court concluded that requiring the defendants to pay Dr. Heuser’s deposition costs would be a manifest injustice. The court relied primarily on the nature and quality of his deposition responses, including his inability to recall important details about preparing his report and communicating with counsel. The plaintiffs acknowledged that, because of Dr. Heuser’s health and deposition performance, it was no longer feasible to call him as a trial witness. The court therefore ruled that the defendants were not required to pay fees associated with his deposition.

Sanctions and Motion Expenses

The defendants sought reimbursement of all costs and fees associated with Dr. Heuser’s deposition under 28 U.S.C. § 1927 and the court’s inherent authority to sanction litigation conduct. The court found that the plaintiffs’ counsel should have acted more diligently in evaluating Dr. Heuser’s ability to testify, but it did not find vexatious conduct, bad faith, recklessness, or conduct sufficiently unreasonable to justify sanctions. The court therefore denied the request for costs and fees associated with that deposition.

The court treated the request for expenses incurred in bringing the motion under the framework of Federal Rule of Civil Procedure 37(a). It found that the plaintiffs’ position concerning Dr. Heuser’s fees was substantially justified, but that their decision to withhold payment of the defendants’ experts’ fees as leverage to obtain payment for Dr. Heuser was not substantially justified. The court ordered the plaintiffs to pay the reasonable attorney fees and costs incurred in pursuing the motion to compel payment of the defendants’ expert fees. The defendants had to file an affidavit detailing those expenses, excluding expenses related to the Dr. Heuser requests; the order did not set the additional amount.

Disposition

The court granted in part and denied in part the defendants’ Motion for Payment of Experts’ Fees and Sanctions. The plaintiffs had to pay the defendants’ experts $8,791.00 within 14 days, the defendants did not have to pay Dr. Heuser’s deposition fee, the request for costs and fees associated with Dr. Heuser’s deposition was denied, and the defendants had to submit an affidavit supporting the expenses from the successful part of their motion.