The plaintiff wants to testify as his own expert—and he wants to get paid? How does that work?

In the U.S. District Court, N.D. Illinois, Magistrate Jeffrey Cole was asked to rule on plaintiff’s motion for fees for the deposition of the plaintiff’s expert pursuant to Rule 26(b)(4)(E) in a breach of contract case regarding development and marketing of educational content.

Judge Cole said what makes the case unusual is that the plaintiff has designated himself as his own expert witness and insists that he is entitled to be paid for his testimony. Plaintiff is a Harvard trained economist, who has written numerous expert reports for use in state and federal courts and in foreign countries, and has published numerous academic papers in journals that discuss the methodologies utilized in his expert report.

Plaintiff announced that his minimum fee for work that leveraged his training and experience was “the lesser of $5,000 per day (or roughly $700 per hour) or $2,000 for shorter periods of time, plus expenses, which include[d] business class expenses on airlines, …lodging and meals.” (emphasis added). The court described the doctor’s rates as “rather heady,” but noted that he told the judge that he was quite successful, doing 6 to 10 engagements in the past 10 years. Plaintiff argued that the “plain language” of Rule 26(b)(4)(E)(i) required an expert, even if he is a party, be paid by the party seeking discovery.

Judge Cole said close, but no cigar.  The doctor’s argument was oversimplified, the judge wrote, and ignored the fact that statutory interpretation, quoting a recent Supreme Court case, “depends upon reading the whole statutory text, considering the purpose and context of the statute, and consulting any precedents or authorities that inform the analysis.”  To require that a party serving as his own expert be paid for being deposed, he said, would be unfair to the party taking the deposition. “[T]he purpose[ ] of Rule 26(b)(4)(E) … is to ensure that a party seeking discovery in the form of a deposition … does not obtain for free what the other party has paid for.” Where a party is serving as his own expert, there is no expense to a third person, and the party taking the deposition is not obtaining it at the opponent’s expense. One of the purposes of Rule 26(b)(4)(E) (formerly Rule 26(b)(4)(C)) is a court’s power to order that an “expert be paid a reasonable fee for time spent in responding to discovery, and that the party whose expert is made subject to discovery be paid a fair portion of the fees and expenses that the party incurred in obtaining information from the expert,” Cole wrote, citing the Rule 26, 1970 Advisory Committee Note.

To accept the plaintiff’s interpretation of Rule 26(b)(4)(E) “would be antithetical to the American system’s preference for parties to bear their own costs,” as it would require a party to pay a an expert witness for time spent in an adversarial deposition even though it didn’t cost him anything—there’s nothing to be reimbursed.

Plaintiff’s reading of Rule 26(b)(4)(E)(i) didn’t jive the next section, Rule 26(b)(4)(E)(ii), which  provides that the court must require that the party seeking discovery pay the other party a fair portion of the fees and expenses it reasonably incurred in obtaining the expert’s facts and opinions. Here, Plaintiff admitted that since he was a party, he didn’t pay himself for his expert report. So there were no fees.

Judge Cole concluded that Rule 26  was quite clear that fee shifting is mandatory unless “manifest injustice” would result, which is “exactly what would happen here were Rule 26(b)(4)(E)(i) interpreted in the fashion urged by the plaintiff.” That would mean paying a party acting as his own expert even though he incurred no cost. Cole held, “That is not appropriate cost shifting, but rather the inappropriate subsidization of the other side’s case.”

Plaintiff’s motion was denied and he didn’t get paid.

By: Kurt Mattson, J.D., LLM

20+ years of legal experience

Krepps v. NIIT (USA), Inc., 297 F.R.D. 579 (N.D.Ill. 2013).