Do I Have to Pay My Adversary's Experts to Depose Them?

A recent decision by a Massachusetts District Court addressed an important issue: When is a witness not entitled to expert fees at deposition?1

Ingrid Kiley owned a home in Brookfield, Massachusetts. During the winter of 2013-2014, the pipes in the dwelling burst causing water damage. Kiley didn’t learn of the damage until she came back home in March 2014, after visiting with her daughter. Kiley did not report the loss to Metropolitan until April 2, 2014, because she did not believe it would be covered. The dwelling was heated with oil to which she received deliveries on a will call basis. Metropolitan retained ISE Engineering to inspect the property. Mr. Raiche (an employee of ISE) inspected the property on April 16, 2014, and noted that the boiler had been submerged in water and was not functioning but it had oil in it. Mr. Raiche’s report was signed off on by Mr. Certuse. On May 8, 2014, Metropolitan notified Kiley that the loss was not covered. Kiley filed suit and on March 3, 2015, and served deposition notices on Raiche and Certuse. Metropolitan intended to call both as expert witnesses and Kiley did not intend to compensate them for their time in responding to discovery.

Metropolitan filed a motion for protective order under Federal Rule of Civil Procedure 26(c). When Kiley issued the notices of deposition, Raiche had not been designated or identified as an expert witness by Metropolitan. He had since been identified as an expert for Metropolitan, but Metropolitan had proffered no information regarding his intended testimony. Certuse had been identified as an expert witness in Defendant’s disclosures, however Metropolitan did not provide the subject upon which he was expected to testify, the substance of the facts and opinions to which he is expected to testify, or a summary of the grounds of each opinion. The court denied the insurer’s request for a protective order, stating:

[I]nsofar as the testimony is based on facts, opinions, and knowledge known to Raiche and Certuse prior to the denial of Kiley’s insurance claim…it is not testimony based on information acquired in the preparation for trial. Rather, they are professionals who have acquired or developed facts based on their own observations which Metropolitan used to determine whether to deny Kiley’s claim. As such they are not entitled to reimbursement of reasonable fees under FRCP 26(b)(4)(E).

The term “in the preparation for trial” can be very liberally construed. It seems this exclusion to pay for experts will be litigated in the future to provide more clarity. For now, depending on the facts of your case, you may be able to depose an expert witness as a fact witness without incurring expert fees. I leave you with a quote from hall of famer Casey Stengel about getting paid:

“Managing is getting paid for home runs someone else hits.”

1 Kiley v. Metropolitan Property and Casualty Ins. Co., No. 14-40131, 2016 WL 335856 (D. Mass. Jan 27, 2016).

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