Taylor et al v. Cottrell, Inc. et al

Filing 351

MEMORANDUM AND ORDER- HEREBY ORDERED that Defendant Cottrell's Motion to Bar Dr. Odor's Testimony, for Sanctions, to Dismiss for Fraud on the Court, [Doc. No. 334 ] and Defendant Auto Handling, Corp.s Joinder in this motion, [Doc. No. 343 ], are granted in part. FURTHER ORDERED that Dr. James Odor is barred from testifying in this matter. Signed by District Judge Henry E. Autrey on 02/04/2014. (CLK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
TIMMY A. TAYLOR and
DEBORAH TAYLOR,
Plaintiffs,
vs.
COTTRELL, et al.,
Defendants.

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No. 4:09CV536 HEA

MEMORANDUM AND ORDER
This matter is before the Court on Defendant Cottrell’s Motion to Bar Dr.
Odor’s Testimony, for Sanctions, to Dismiss for Fraud on the Court, [Doc. No.
334] and Defendant Auto Handling, Corp.’s Joinder in this motion, [Doc. No.
343]. Plaintiffs oppose the motions. The Court held a hearing on this matter, after
which, the Court continued the trial in this matter. After consideration of the
arguments and memoranda, the Court finds that the motion should be granted in
part.
Facts and Background
Defendants discovered that Dr. James Odor, Plaintiff’s expert witness, and a
treating physician who performed surgery on Plaintiff, and Plaintiff’s counsel
entered into an agreement that Dr. Odor’s office would not get paid if Plaintiff did

not recover anything from this action. This arrangement was discovered by
Defendant Cottrell through a notation on Plaintiff Timmy Taylor’s records which
were, after arduous attempts, produced to Defendant’s counsel. Upon noticing a
notation: “letter of credit,” counsel deposed Ms. Weber regarding the meaning of
the notation. Subsequent to her deposition, Ms. Weber has submitted an affidavit
in which she avers that she “mistakenly and repeatedly misidentified ‘letters of
protection’ as ‘letters of credit’ and ‘letters of guarantee.’
Discussion
Post-deposition affidavits are particularly subject to close scrutiny. It is
well-established in the Eighth Circuit that an affidavit that directly contradicts
earlier deposition testimony is insufficient to create a genuine issue of material
fact. Camfield Tires, Inc. V. Michelin Tire Corp., 719 F.2d 1361, 1362 (8th Cir.
1983); see, Popoalii v. Correctional Medical Services, et. al., 512 F.3d. 488, 498
(8th Cir.2008).
If an additional affidavit simply restates information already
contained in deposition testimony or elaborates on information
already conveyed, then the district court should consider the affidavit.
Contradictory supplemental affidavits are a different matter. We have
held that ‘[i]f testimony under oath ... can be abandoned many months
later by the filing of an affidavit, probably no cases would be
appropriate for summary judgment. A party should not be allowed to
create issues of credibility by contradicting his own earlier
testimony.’ Post-deposition contradictory affidavits are admitted only
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when the prior deposition testimony shows confusion, and the
subsequent affidavit helps to explain the contradiction.”

Popoalii, at 498 (internal citations omitted).
Consideration should be given as to whether the deposition testimony
reflects confusion on the part of the deponent/affiant, and the post-deposition
affidavit is an attempt to explain the confusion or contradiction between the
deposition testimony and the post-deposition affidavit(s). City of St. Joseph v.
Southwestern Bell Telephone, 439 F.3d 468, 476 (8th Cir. 2006). Finally, the
reviewing court may also examine all the circumstances surrounding the filing of
the post-deposition affidavit(s), including the timing of the filing of the affidavit,
in determining whether it is a sham. City of St. Joseph, at 476.
Upon careful consideration of the pleadings, the circumstances surrounding
the filing of Ms. Weber’s affidavit, including its timing, i.e., in response to
Defendants’ Motion to Bar Dr. Odor’s testimony, the Court agrees with
Defendants that Ms. Weber’s subsequent affidavit is an attempt to avoid her
deposition testimony and not to avoid confusion. The affidavit, is therefore,
stricken.
With respect to the claim that there exists a contingency arrangement with
Dr. Odor, and therefore his testimony should be barred, the Court is dismayed at
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the events detailed in Defendant’s Motion. Clearly, a contingency fee
arrangement with an expert witness raises grave fairness and fair play
considerations. Where the payment of the expert is contingent, the witness' own
interest will become intensified, and the reliability of the testimony and
impartiality of the expert's position will be significantly weakened.
Section 117 of the Restatement (Third) of The Law Governing Lawyers
provides, in relevant part,:
A lawyer may not offer or pay to a witness any consideration:
(2) contingent on the content of the witness's testimony or the outcome of the
litigation
Comment c. details further:
Compensating an expert witness. A fee paid an expert witness may
not be contingent on the content of the witness's testimony or the
result in the litigation. On a lawyer's liability for an expert's fee, see §
30(2)(b). On a lawyer's advancing the costs of litigation, see § 36(2).
An opposing party may inquire into the fee paid to an expert or other
witness in order to impeach the testimony of the witness. The
prohibition against contingent compensation does not apply to an
expert retained only to consult and not to testify or otherwise provide
evidence.
Id. (Emphasis added).
Plaintiffs argue that the arrangement detailed in the pleadings is not a
contingency arrangement, rather, it is more in tune with a lien on recovery in the
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event Plaintiffs do not pay Dr. Odor’s fee.1 The Court is unpersuaded by Plaintiffs
creative characterization. Indeed, as “a rose by any other name would smell as
sweet,”2 a contingency fee agreement with an expert witness by any other name
smells as sour.
The Court finds that the best course of action here is to exclude the
testimony of Dr. Odor as an expert witness. The fact that Dr. Odor’s opinions
were rendered when he had a direct financial interest in the outcome of this action,
raises serious questions about the integrity of his expert testimony.
Conclusion
The Court has considered the arguments and memoranda of the parties
regarding the contingency arrangement with Dr. Odor. Defendants’ Motion will
be denied.
Accordingly,
IT IS HEREBY ORDERED that Defendant Cottrell’s Motion to Bar Dr.
Odor’s Testimony, for Sanctions, to Dismiss for Fraud on the Court, [Doc. No.
334] and Defendant Auto Handling, Corp.’s Joinder in this motion, [Doc. No.
1

Interestingly, there exists conflicting information on the amount of the fee. While it
was billed by Dr. Odor and his surgery center as $450,000, Defendant has presented evidence
that the amount Dr. Odor agreed to accept as his payment was $41,000. The Court queries
whether this difference raises further ethical considerations.
2

Dialog from “Romeo and Juliet” by William Shakespeare.
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343], are granted in part.
IT IS FURTHER ORDERED that Dr. James Odor is barred from
testifying in this matter.
Dated this 4th day of February, 2014.

________________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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