Expert Witness Profiler

Tag: Discovery

  • Experts are entitled to a reasonable fee despite objections to the admissibility of their opinions

    Experts are entitled to a reasonable fee despite objections to the admissibility of their opinions

    In February 2016, Plaintiffs-Appellants Scott Miller and Michael Spaulding, two Seattle Police officers, fatally shot Che Andre Taylor, a Black man, as they tried to arrest him. Four days after the shooting, Defendant-Appellee Kshama Sawant, then a member of the Seattle City Council, told a crowd of protestors in front of the Seattle Police Department Headquarters that Taylor’s shooting was a “blatant murder at the hands of the police.” Following an inquest into Taylor’s killing, prosecutors declined to file criminal charges against Miller and Spaulding on the ground that there was insufficient evidence to prove that they killed Taylor with the requisite “malice” to be guilty of criminal homicide, as required by Washington law. Roughly three months after the inquest concluded, Sawant told a crowd of protestors that Taylor was “murdered by the police.”

    Miller and Spaulding filed suit in federal court, alleging state law claims for defamation and outrage (i.e., intentional infliction of emotional distress), as well as “federal defamation,” against Sawant.

    The district court dismissed the “federal defamation” claim when it granted Sawant’s motion for partial judgment on the pleadings, but chose to exercise supplemental jurisdiction over the remaining state law defamation and outrage claims. The district court granted Sawant’s motion for summary judgment as to the state law defamation and outrage claims, and Miller and Spaulding appealed the district court’s grant of that motion.

    The appellate court affirmed the district court’s grant of Sawant’s motion for summary judgment but considered whether the district court erred when it granted Sawant’s motion for recovery of expert witness deposition expenses, which included fees for time spent in preparation for deposition.

    Law Enforcement Expert Witness

    Professor Gregory Gilbertson (Ret.) is an expert witness in police practices. He specializes in police use of force, false arrest, officer misconduct, criminal and self-defense casework. He is also a former SWAT team officer, senior patrolman, stakeout squad officer, juvenile investigator, school resource officer, private investigator, and Guardian ad Litem. 

    Get the full story on challenges to Gregory Gilbertson’s expert opinions and testimony with an in-depth Challenge Study. 

    Law Expert Witness

    Lisa Daugaard is an American criminal justice reform activist. She is the director of the nonprofit organization Public Defender Association and a commissioner of the Community Police Commission in Seattle. She received a 2019 MacArthur Fellowship for her criminal justice reform work.

    Want to know more about the challenges Lisa Daugaard has faced? Get the full details with our Challenge Study report. 

    Discussion by the Court

    Sawant sought payment of the fees her expert witnesses had incurred in responding to Miller and Spaulding’s discovery

    In December 2022, Miller and Spaulding deposed two witnesses who Sawant identified as experts in her initial disclosures. Sawant had retained the identified experts as potential defense witnesses. That same month, Sawant sent Miller and Spaulding the experts’ invoices and requested payment for the fees her expert witnesses had incurred in responding to Miller and Spaulding’s discovery, including time spent preparing for the deposition. Sawant sought payment of the fees pursuant to Federal Rule of Civil Procedure 26(b)(4)(E).

    However, Miller and Spaulding failed to provide payment. Sawant covered the costs after Plaintiffs refused to pay, and filed a motion to compel payment.

    As relevant here, the expert witness deposition fees Sawant sought included compensation for time the witnesses had spent preparing for their depositions.

    Specifically, Sawant sought $1,367.50 for Professor Gregory Gilbertson’s expert witness deposition fees and $1,770.00 for Lisa Daugaard’s expert witness deposition fees.

    In June 2023, the district court granted Sawant’s motion, noting there is no clear guidance from the Ninth Circuit regarding whether the reimbursement of preparation time is permitted under Rule 26, but concluding that Sawant’s request was reasonable, that awarding the fees “falls squarely within the ambit of Rule 26(b)(4)(E),” and that no manifest injustice would result from awarding the fees.

    Miller and Spaulding’s objected to the admissibility of Daugaard’s opinions

    Miller and Spaulding argued that the district court erred when it granted Sawant’s motion for Daugaard’s expert witness deposition expenses without first assessing whether she qualified as an expert under the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

    To begin with, the plain text of Rule 26 provides that a district court “must require” that a deposing party pay “a reasonable fee for time spent in responding to discovery” by “an expert whose opinions may be presented at trial.” The Court held that Miller and Spaulding’s objection to the admissibility of Daugaard’s opinions did not obviate their obligation to pay Daugaard a reasonable fee under Rule 26.

    Expert witness deposition preparation fees that were awarded to Sawant were reasonable and their award did not result in manifest injustice

    Miller and Spaulding also argued that the district court erred when it granted Sawant’s motion for expert witness deposition fees for Gilbertson’s and Daugaard’s time spent preparing for their depositions. That is, Miller and Spaulding maintained that Rule 26(b)(4)(E) permitted expert fees only for time spent during a deposition, and not for time spent preparing for a deposition.

    The Court held that Miller and Spaulding’s suggestion that such fees are never recoverable cannot be squared with Rule 26’s plain text, which requires the “party seeking discovery” to “pay the expert a reasonable fee for time spent in responding to discovery under Rule 26(b)(4)(A).”

    Moreover, Miller and Spaulding raised several policy concerns based on “costs and incentives” and “the potential for abuse” if deposition preparation fees are recoverable. But the policy concerns they raised are addressed by Rule 26’s existing textual limitations on recoverable fees: namely, that fees must be “reasonable,” and their award must not result in “manifest injustice.” Gilbertson spent only 2.5 hours preparing and Daugaard only 2.2 hours, and Miller and Spaulding did not contest the fairness of Gilbertson’s and Daugaard’s hourly rates.

    Held

    In conclusion, the appellate court concluded that the district court did not err when it granted Sawant’s motion for recovery of her expert witnesses’ deposition fees.

    Key Takeaway:

    Therefore, the plain text of Federal Rule of Civil Procedure 26 allows for the recovery of reasonable expenses for the time an expert witness, whose opinions may be presented at trial, spends preparing for a deposition. Plaintiffs’ objection to the admissibility of the expert’s opinions did not obviate their obligation to pay the expert a reasonable fee under Rule 26.

    Case Details:

    Case Caption: Scott Miller V. Kshama Sawant
    Docket Number: 2:18cv506
    Court: United States Court of Appeals for the Ninth Circuit
    Order Date: August 22, 2024
  • Psychiatry Expert Witness’ Testimony Regarding Plaintiff’s Pain and Suffering Related to his Defamation Claims Rejected

    Psychiatry Expert Witness’ Testimony Regarding Plaintiff’s Pain and Suffering Related to his Defamation Claims Rejected

    In this pending lawsuit, which was the product of consolidated cases: Case No. 20-1074, the Lead Case, and Case No. 22-1186, the Member Case, Fazio filed a second amended complaint in the Lead Case against Metropolitan Casualty Insurance Company (“Metropolitan Casualty”), Naihomi Figueroa Fontánez (“Ms. Figueroa”), and Isaías Soto Reyes (“Mr. Soto”) on September 29, 2020. In the complaint, Fazio alleged that while being transported in an Uber ride, his vehicle was struck from behind while stopped at a traffic light, resulting in damages. Fazio contended that all Defendants were jointly and severally liable, entitling him to compensation in excess of one million dollars ($1,000,000). Fazio further alleged that James River breached the provisions of the uninsured motorist coverage as part of a policy issued to Uber “for the benefit of Uber drivers and passengers” by denying coverage and by failing to compensate him for his injuries. Additionally, in the Lead Case, Fazio brought five additional causes of action against James River alone: breach of contract, contractual breach of the implied covenant of good faith and fair dealing, tortious breach of the implied covenant of good faith and fair dealing, bad faith, and unfair claim adjustment practices. In the Member Case, on June 22, 2022, Fazio filed an amended complaint against James River alone, alleging violations of Article II, Section 8 of the Constitution of the Commonwealth of Puerto Rico; violations of the Puerto Rico Libel and Slander Act of 1902, 32 L.P.R.A. §§ 3141-3149; and violations of the general tort provisions of Puerto Rico Civil Code Articles 1536 and 1538, 31 L.P.R.A. §§ 10801 and 10803. In this 2022 lawsuit, Fazio alleged that James River defamed him during the pendency of the Lead Case. On October 6, 2022, James River filed a motion to dismiss all claims in the Member Case, resulting in the Court dismissing with prejudice one of the three causes of action: Fazio’s claim that James River defamed him with its use of the word “extort” during an email exchange between the parties. On September 30, 2022, the Court consolidated both cases. On February 23, 2024, the Court granted James River’s motion for summary judgment as to the remaining two causes of action in the Member Case.

    Fazio requested that Fernando Cabrera Jr.’s testimony, whom Defendant James River Insurance Company (“James River”) had declared as an expert witness, be excluded from trial on Daubert grounds and because it violated the Court’s orders.

    Psychiatry Expert Witness

    Fernando Cabrera is a distinguished and proven expert psychiatrist who has various decades of experience testifying in the Puerto Rico State and Federal Courts. He has over 42 years of experience in the medical field. He graduated from Universidad Central Del Caribe School of Medicine in 1981.

    Discussion by the Court

    Fazio argued that Cabrera’s report should be excluded on Daubert grounds. Fazio first contended that Cabrera’s opinions in his expert report were not reliable because his methodology and analysis were flawed. The Court found that Fazio did not provide any specificity in his argument that cast a shadow on the methodology used in Cabrera’s report. The methodology behind Cabrera’s report was composed of Fazio’s biodata, description of present illnesses, family history, mental status, and Diagnostic and Statistical Manual of Mental Disorders (“D.S.M.-5”) information, and Cabrera’s observations from a one-and-a-half-hour interview with Fazio and conclusions. Fazio cited various jurisprudence examples of when an expert’s methodology was erroneous but did not apply the principles outlined in the jurisprudence that he cited to Cabrera’s report. For example, Fazio did not explain what facts Cabrera failed to consider, why his conclusions could not have been reached from conducting a one-and-a-half-hour interview, how his methodology was erroneous, or how he conducted a faulty investigation.

    Fazio also asserted that Cabrera’s testimony should be excluded because it related almost entirely to the Lead Case, in violation of the Court’s orders. At the time Cabrera was retained, his interview with Fazio was conducted, and his report was produced, discovery in the Lead Case had concluded and the parties were ordered to continue discovery for only the Member Case. However, contrary to what Fazio was suggesting, the facts and damages relating to the Member Case, that is Fazio’s defamation claims, could not be considered in isolation apart from the Lead Case. To accurately determine Fazio’s pain and suffering relating to his defamation claims, a jury would have to be made aware of any pain and suffering Fazio had before the alleged defamation happened, so it could discount said pain and suffering and ensure that Fazio was only being awarded damages relating to the defamation claims. Therefore, it was not improper that Cabrera’s report discussed predefamation pain and suffering. Moreover, it was Fazio who brought the Lead Case and moved to consolidate. Thus, the Court held that Fazio cannot complain that information relating to the Lead Case was being discussed to provide a clear and complete picture of the Member Case.

    However, there were two other concerns that needed further discussion warranting Cabrera’s testimony to be excluded at trial. First, Fazio’s motion asserted that Cabrera’s expert report failed to comply with the expert disclosures required under Fed. R. Civ. P. 26(a)(2)(B). The Court observed that James River did not address this failure to provide expert disclosures in its opposition. Nor could Cabrera’s report, on its face, satisfy all of the requirements under Fed. R. Civ. P. 26(a)(2)(B). For example, the report did not refer to compensation paid for Cabrera’s testimony, any publications in the last decade, and previous testimony during the last four years.

    Second, even if James River had provided the expert disclosures, the Court declared it was apparent that Cabrera was retained solely for the Member Case. The discovery phase of the Lead Case had closed on August 31, 2021. On November 8, 2022, the Court reiterated that the discovery phase in the Lead Case had closed and set deadlines for further discovery relating solely to the Member Case. Thereafter, on December 30, 2022, James River informed the Court that it had retained Cabrera, among others. Therefore, because discovery of the Lead Case was already closed, James River retained Cabrera solely for the Member Case. Moreover, the only medical opinion that Cabrera gave was regarding the Member Case: “My medical opinion is that Fazio has no emotional conditions that are secondary [to], or related to, the supposed defamation h[e] is alleging in his Complaint against [James River] and its lawyers.” Cabrera’s report, although it made references to circumstances surrounding the Lead Case, was prepared solely for the Member Case, not the Lead Case. In light of the Opinion and Orders dismissing Fazio’s defamation claims entirely, the need to have Cabrera testify about the damages suffered as a result of said claims is moot. Accordingly, Cabrera was not allowed to testify at trial, and Fazio’s motion in limine was granted.

    Held

    The Court granted Plaintiff’s motion to exclude Fernando Cabrera Jr.’s testimony.

    The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

    Key Takeaways:

    When challenging expert testimony on Daubert grounds, specific arguments regarding methodology’s reliability are crucial, as generalized criticisms may not suffice to exclude the testimony. Additionally, expert testimony should be directly relevant to the case at hand, and even if certain aspects relate to other cases, they may be admissible if they contribute to a clear understanding of the current case. It’s imperative for expert reports to comply with legal requirements outlined in the Federal Rules of Civil Procedure, as failure to meet these requirements can be grounds for exclusion. Moreover, experts should be retained within the appropriate scope of the case, and their involvement should align with the specific aspects they are retained for. If expert opinions are not directly relevant to the issues in the case, they may be deemed inadmissible. Lastly, if certain aspects of the case become moot or irrelevant due to court rulings or other developments, expert testimony related to those aspects may be excluded. Overall, careful consideration of the reliability, relevance, compliance with legal requirements, and scope of retention of expert testimony is essential to ensure its meaningful contribution to the case resolution.

    Case Details:

    Case Caption: Fazio V. James River Insurance Company Et Al
    Docket Number: 3:20cv1074
    Court: United States District Court, Puerto Rico
    Citation: 2024 U.S. Dist. LEXIS 34462
    Order Date: February 23, 2024