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G.C. v. South Washington County School District 833

United States District Court, D. Minnesota

February 13, 2019

G.C. and J.C. by their next friend and Mother Angela Tsiang, Plaintiffs,
South Washington County School District 833 and Dr. Keith Jacobus, Superintendent of the South County Washington School 833, Defendants.

          John J. E. Markham, II, Markham & Read, (for Plaintiffs)

          John P. Edison & Michael J. Waldspurger, Rupp, Anderson, Squires, and Waldspurger, (for Defendants);


          Tony N. Leung United States Magistrate Judge

         This matter is before the Court on Defendants' Motion for Payment of Experts' Fees and Sanctions. (ECF No. 109). For the reasons set forth below, the Court will grant the motion in part and deny it in part.

         I. BACKGROUND

         On August 11, 2017, Plaintiffs filed suit against Defendants South Washington County School District 833 and Dr. Keith Jacobus, alleging that they have violated Plaintiffs' rights under the Americans with Disabilities Act (“ADA”).[1] (ECF No. 1). Plaintiffs allege that G.C., a student at South Washington County District 833 has a condition known as Electromagnetic Hypersensitivity Syndrome (“EHS”). Am. Compl., ¶ 2. Plaintiffs contend this condition causes G.C. headaches, memory and concentration difficulties, fatigue, stress, digestive problems, and skin symptoms. Id. ¶ 3. They allege that Defendants have failed to provide a meaningful accommodation to G.C. so that he may continue to “partake in the full enjoyment of the services, facilities, privileges, and advantages” offered by his school. Id. at ¶¶ 39-40. Plaintiffs seek, among other things, injunctive relief and costs and attorney's fees.

         The parties have retained experts to prepare reports and testify in this litigation. Defendants have retained Drs. Kenneth Foster and Joseph Rasimas. (ECF Nos. 112 & 115). Plaintiffs have retained Drs. Gunnar Heuser and Toril Jelter. (ECF No. 127, p. 1; ECF No. 113-1, p. 61, 66). The parties have deposed each other's experts.

         Before Plaintiffs deposed Defendants' experts, counsel for Defendants informed Plaintiffs that Defendants would require pre-payment of their fees before being deposed, unless Plaintiffs' counsel agreed to take responsibility for the fees. (ECF No. 113-1, p. 11). Plaintiffs' counsel informed Defendants to direct their experts' invoice to their law office. (Id.). Plaintiffs then took the deposition of Defendants' experts on July 9 and 10, 2018. (ECF No. 112-1; ECF No. 115-1).

         On July 26, 2018, Dr. Foster submitted an invoice of $3, 600 for his deposition, which included six hours of preparation time and three hours of deposition time. (ECF No. 115-1). On August 26, 2018, Dr. Rasimas submitted invoices totaling $5, 191 for his deposition, which included four hours of preparation time, four hours of deposition time, two and a half hours for deposition transcript review and errata submission, and parking. (ECF No. 112-1). Defendants submitted these invoices to Plaintiffs' counsel on August 2, 2018 and September 5, 2018, respectively. (ECF No. 113-1, p. 19).

         Defendants scheduled the deposition of Dr. Heuser for June 21, 2018. (ECF No. 114, p. 1). The parties subsequently rescheduled the deposition for July 13 and then August 2, 2018, after Dr. Heuser suffered a heart attack. (ECF No. 114, p. 1). His deposition took place in Sacramento, California. (ECF No. 114, p. 2).

         The parties agree that the deposition of Dr. Heuser did not go well. Dr. Heuser could not recall several facts regarding previous testimony or his prior interactions with counsel in this matter, and he could not identify whether certain images in his report were the same as those referenced by a radiologist. (ECF No. 121, pp. 2-3). A review of the transcript and Dr. Heuser's report also shows that his findings were inconsistent with the sources he relied on in his report and that he disregarded information that contradicted his report. For example, Dr. Heuser concluded that G.C. had mast cell activation, despite the fact that a biopsy had found otherwise. (ECF No. 98-1, p. 115). Dr. Heuser chose not to include or even reference that biopsy in his report, but, contended that he was not aware whether the biopsy was done correctly (Id.).[2] Defendants claim to have found approximately 40 different instances where Dr. Heuser admitted that he was unaware of where certain items came from in his report, that certain items were selected at Plaintiffs' urging, or that his report was inconsistent with his testimony. (ECF No. 98-8, p. 140-42). Approximately three weeks after his deposition took place, Plaintiffs indicated they would withdraw Dr. Heuser as an expert because he was too ill to continue in the lawsuit. (ECF No. 120, p. 7). Dr. Heuser subsequently submitted a bill of $4, 500 for his deposition testimony. (ECF No. 113-1, p. 62).

         On October 3, 2018, Defendants notified Plaintiffs they had not received payment for either of their expert's depositions yet. (ECF No. 113-1, p. 19). Defendants followed up with a second request for payment on October 10, 2018, after Plaintiffs did not respond. (ECF No. 113-1, p. 21). In response, Plaintiffs asked that Defendants provide declarations from each expert detailing the type of preparation time they spent on their depositions. (ECF No. 113-1, p. 30). Defendants submitted a declaration from Dr. Foster on November 1, 2018. (ECF No. 113-1, pp. 35-36). Defendants indicated that they would not submit a declaration for Dr. Rasimas because counsel for Plaintiffs did not identify any specific concerns with his invoice. (ECF No. 113-1, p. 34).[3]

         Plaintiffs did not respond until November 28, 2018, after Defendants requested yet another update as to the status of payment. (ECF No. 113-1, pp. 42-43). At that time, they only asked that Defendants resend Dr. Foster's declaration. (ECF No. 113-1 at 42). A few days later they informed Defendants that they would submit a partial payment for their experts' depositions. (ECF No. 113-1, p. 48). They also indicated that they would pay the remainder once Defendants paid Dr. Heuser for his deposition time (ECF No. 113-1, p. 48). In response, Defendants indicated that they would not pay Dr. Heuser's fees, stating that his fees were not justified given the issues that they identified with his testimony and report. (ECF No, 113-1, pp. 52-53).

         Defendants have now filed a motion seeking: (1) payment of their expert fees in full; (2) an order stating they are not required to pay any fee associated with Dr. Heuser's deposition (3) reimbursement of all costs and fees associated with the deposition of Dr. Heuser; and (4) reimbursement of all costs and fees associated with bringing this motion. (ECF No. 109). Plaintiffs filed a memorandum of law in response. (ECF No. 118). The Court heard argument on this matter on January 2, 2019. At that hearing, Plaintiffs' counsel indicated that it had been a tactical decision to withhold the remainder of Defendants' expert fees, in the hopes of convincing Defendants to compensate Dr. Heuser. The parties then submitted supplemental briefing on the issue of Dr. Heuser's testimony. The Court took this matter under advisement after receipt of that briefing.

         II. ANALYSIS

         A. Motion to Compel Payment of ...

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