United States District Court, D. Minnesota
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.
J. E. Markham, II, Markham & Read, (for Plaintiffs)
P. Edison & Michael J. Waldspurger, Rupp, Anderson,
Squires, and Waldspurger, (for Defendants);
N. Leung United States Magistrate Judge
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.
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”). (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
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.
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).
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).
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).
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.). 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).
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).
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).
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.
Motion to Compel Payment of ...