United States District Court, D. New Mexico
ORDER DENYING NONPARTY RIMKUS CONSULTING GROUP,
INC.'S MOTION TO OBTAIN EXPERT WITNESS FEES
Fashing United States Magistrate Judge
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.
Background Facts and Procedural Posture
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. Rimkus is not a party to
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. 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.
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.
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.
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.” 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,
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.
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 ...