Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Fava v. Liberty Insurance Corp

United States District Court, D. New Mexico

August 20, 2018

HECTOR FAVA and BARBARA FAVA, Plaintiffs,
v.
LIBERTY INSURANCE CORPORATION, Defendant.

          ORDER DENYING NONPARTY RIMKUS CONSULTING GROUP, INC.'S MOTION TO OBTAIN EXPERT WITNESS FEES

          Laura Fashing United States Magistrate Judge

         THIS MATTER comes before the Court on Nonparty Rimkus Consulting Group, Inc.'s, (“Rimkus”) Motion to Obtain Expert Witness Fees filed October 2, 2017. Doc. 33. Rimkus filed a supplement to its motion on November 15, 2017 that included deposition testimony of Roderick Rennison and Thomas Parco. Docs. 39, 39-1, 39-2. Plaintiffs Hector and Barbara Fava filed their response to Rimkus's motion on December 7, 2017. Doc. 42. Rimkus filed its reply on December 21, 2017 (Doc. 45) and a notice of completion of briefing on January 2, 2018 (Doc. 46). Defendant Liberty Mutual Insurance Company (“Liberty Mutual”) did not take a position on the motion or participate in the briefing. Having reviewed the submissions of the parties and the case law, the Court finds that the motion is not well taken and will be DENIED.

         I. Background Facts and Procedural Posture

         This case arises from water damage to plaintiffs' residence. Plaintiffs filed a claim with their insurance company, defendant Liberty Mutual. During the claims process, and prior to any litigation, Liberty Mutual retained Rimkus to evaluate the origin of the water damage to plaintiffs' residence. Roderick Rennison and Thomas Parco were the Rimkus employees tasked with evaluating plaintiffs' residence and preparing a report for Rimkus' client, Liberty Mutual. Rennison is a licensed professional engineer and Parco is a registered architect.[1] Rimkus is not a party to this action.

         Plaintiffs subpoenaed both Rennison and Parco for depositions in this case. In addition to the subpoena, plaintiffs supplied Rennison and Parco with a check for witness fees pursuant to Fed.R.Civ.P. 45 (b)(1) and 28 U.S.C. § 1821.[2] Doc. 33-1 (Rennison); Docs. 33-4, 33-7(Parco). When it received the subpoenas, Rimkus submitted a bill to plaintiffs' counsel that reflects an expert witness fee for Rennison and Parco's depositions. Docs. 33-2, 33-3 at 2 (Rennison); Docs. 33-5, 33-6 at 2 (Parco). Plaintiffs' counsel advised Rimkus that Rennison and Parco had not been identified as expert witnesses by either party in this case. Doc. 33-3 at 1 (Rennison); Doc. 33-6 at 1 (Parco). Plaintiffs' counsel advised Rimkus that “[as fact witnesses], the amount of [Rennison and Parco's] witness fee is set by federal law.” Id. The parties could not come to an agreement, and they sought the assistance of the Court. Doc. 27. Following a telephonic hearing, the Court ordered the depositions of Rennison and Parco to go forward, but it reserved ruling on whether the deponents or Rimkus were entitled to an expert witness fee. Doc. 30.

         Rimkus now seeks expert witness fees for Rennison's and Parco's deposition testimony. Rimkus contends that Rennison and Parco are entitled to a reasonable fee because they have been called upon to testify as expert witnesses under the Federal Rules of Civil Procedure. Plaintiffs counter that Rennison and Parco are fact witnesses, not expert witnesses, in this case. Thus, they are entitled only to those fees provided for in the federal rules and statutes.

         II. Discussion

         To decide whether the Rimkus witnesses are entitled to a reasonable fee, the Court must determine whether Rennison and Parco are testifying as expert witnesses or fact witnesses.

         Federal Rule of Civil Procedure 26 sets out the parameters for the disclosure of and discovery from expert witnesses. Federal Rules of Civil Procedure 26(a)(2)(A) requires that “a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.”[3] The Advisory Committee Notes explain that “the term ‘expert' [refers] to those persons who will testify under Rule 702 of the Federal Rules of Evidence with respect to scientific, technical, and other specialized matters.” Fed.R.Civ.P. 26, Advisory Committee Notes to paragraph 2 (1993 Amend.). Federal Rule of Evidence 702, states:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

         Rule 26 allows a party to depose a person who has been identified as an expert whose opinions may be presented at trial. Fed.R.Civ.P. 26(b)(4). Rule 26 further requires that the party seeking discovery “pay the expert a reasonable fee for time spent in responding to discovery under ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.