Woods v. USA et al

Filing 51

MEMORANDUM ORDER granting 33 Motion for Reimbursement for Expert Witness Fees. The Government shall tender payment to Plaintiff no later than April 29, 2013. Signed by Magistrate Judge Mark L Hornsby on 04/11/13. (crt,Yocum, M)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION

LORENE B. WOODS

CIVIL ACTION NO. 11-cv-1910

VERSUS

JUDGE HICKS

USA, ET AL

MAGISTRATE JUDGE HORNSBY

MEMORANDUM ORDER
Before the court is Plaintiff’s Motion Requesting Reimbursement for Expert Fees.
Doc. 33. The motion arises out of the deposition of Dr. Plotkin, Plaintiff’s expert witness.
The deposition fees at issue total $850. The Government opposes the motion. After
considering all of the parties’ arguments, the court finds that Plaintiff’s motion should be
granted.
Contrary to the Government’s argument, Plaintiff’s fee agreement with Dr. Plotkin
is not dispositive of the issue of who is required to pay for his deposition under the Federal
Rules of Civil Procedure. Rule 26(b)(4)(E) requires that, unless manifest injustice would
result, the party seeking the deposition of an opponent’s trial expert must pay that expert’s
fee. Absent a finding of manifest injustice, payment of such fees by the party taking the
deposition is mandatory. Hittner, Federal Civil Procedure Before a Trial, § 11:458. It is not
surprising that Dr. Plotkin put the ultimate responsibility for the payment of his expenses on
Plaintiff, the party retaining him, to ensure that he would be paid.

The Government’s argument that the rules contemplate that Plaintiff must seek relief
on this issue prior to the expert’s deposition, and not after, is also unpersuasive. No rule
requires that an opposing expert’s deposition fees be tendered to the witness in advance.
Hittner, Federal Civil Procedure Before a Trial, § 11:458.1. Simply put, timing is not the
issue here.
Accordingly, the Government is ordered to reimburse Plaintiff $850 for the expenses
associated with the Government’s deposition of Dr. Plotkin. Unless otherwise agreed by the
parties, the Government shall tender payment to Plaintiff no later than April 29, 2013 (the
first day of trial).
THUS DONE AND SIGNED in Shreveport, Louisiana, this 11th day of April, 2013.

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