No Reimbursement for “Dress Rehearsal” for Trial

Recently, U.S. District Judge Joseph Rodriguez affirmed an order of U.S. Magistrate Judge Ann Marie Donio and held that a defendant dismissed from a product liability suit cannot recover the costs of preparing an expert witness for deposition.

The action, captioned Durkin v. Wabash International, stems from a 2008 accident in which a truck driver was killed when the load of steel sheet pilings he was carrying shifted forward and pinned him inside the truck. Wabash, the manufacturer of the trailer and bulkhead at issue, was dismissed on summary judgment on May 29, 2013.

Attorneys for Wabash, relying upon Fed.R.Civ.P. 26(b)(4)(E), sought reimbursement from plaintiff for 28 hours of expert time and travel expenses relating to plaintiff’s depositions of Wabash’s experts.  Wabash was granted reimbursement for expert fees incurred during the actual deposition but not for time spent in deposition preparation and expenses related to deposition travel.  Wabash sought review of the issue of whether the phrase “responding to discovery”, under Fed.R.Civ.P. 26(b)(4)(E), encompassed preparation time for deposition and expenses related to deposition travel.  Wabash disagreed with Magistrate Judge Donio’s reliance on Rhee v. Witco Chem. Corp., 126 F.R.D. 45 (N.D. Ill. 1989), in which the district court denied plaintiff’s motion for reimbursement for the time plaintiff’s expert spent preparing for his deposition by defendant.  The Witco court held that “an expert’s deposition is in part a dress rehearsal for his testimony at trial and thus his preparation is part of trial preparation.”  Wabash argued that Witco has been rejected in numerous cases and the District of New Jersey should follow the approach taken by a slim majority of federal courts that permits compensation for an expert’s preparation time.

In affirming Magistrate Judge Donio’s order, District Judge Rodriquez stated that “even if this court were to agree with the number of courts that have permitted reimbursement of time an expert spends in preparation for deposition, the court finds that Magistrate Judge Donio’s order is neither clearly erroneous nor contrary to applicable law.”  This decision reinforces the long-standing state of the law inNew Jersey concerning reimbursement for an expert’s deposition preparation.  However, it is interesting that District Judge Rodriguez hinted that he may agree with the decisions permitting reimbursement of these costs.  This potentially leaves this issue open for change in the future.

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