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Severance v. Chastain

United States District Court, E.D. Missouri, Eastern Division

March 12, 2018

DAVID A. SEVERANCE, Plaintiff,
v.
DR. CHARLES WILLIAM CHASTAIN, et al., Defendants.

          MEMORANDUM AND ORDER

          CHARLES A. SHAW UNITED STATES DISTRICT JUDGE.

         This prisoner civil rights matter is before the Court on plaintiff David A. Severance's Motion for Leave to File Proposed Budgets for Court Appointed Experts Without Consent of All Parties or, Alternatively, for Guidance Regarding the Budgets and Third Extension of Time to File Joint Budgets.[1] The defendants filed a joint opposition to the motion and plaintiff filed a reply. Also pending is plaintiffs Motion for Continuance of Trial Setting and Amended Case Management Order. Defendants Chastain, Babich, Jackson, Long, and Chamberlin oppose the motion for continuance, and plaintiff filed a reply. After carefully considering the parties' submissions, the Court on its own motion will vacate the Order of August 31, 2017 that granted plaintiffs motion for the appointment of expert witnesses pursuant to Federal Rule of Evidence 706. The Court will deny plaintiffs motion for leave to file proposed budgets as moot in all respects, and will deny without prejudice plaintiffs motion for continuance and to amend the Case Management Order.

         I. BACKGROUND

         On August 31, 2017, the Court granted plaintiffs unopposed motion for the appointment of expert witnesses pursuant to Federal Rule of Evidence 706. The Court concluded in light of plaintiffs indigence, the factual allegations of his complaint, and the legal requirements for verifying medical evidence to establish the effect of a delay in treatment, that a court-appointed expert was appropriate to address the following issues:

(1) whether the delay in treatment of plaintiffs jaw fracture had a detrimental effect on plaintiffs condition, prognosis, and future damages; and
(2) whether the delay in treatment of plaintiffs stroke had a detrimental effect on plaintiffs condition, prognosis, and future damages.

Order of Aug. 31, 2017 at 5 (Doc. 134).

         In response to the Court's Order, on September 28, 2017 the parties jointly nominated three Doctors of Dental Surgery as potential expert witnesses to address the first issue. The next day, the parties jointly moved to nominate two additional experts to address the second issue and requested a fifteen-day extension to nominate additional experts. The Court granted the parties' request for an extension of time, and the parties jointly nominated two additional experts on October 16, 2017. From these joint nominations, the Court appointed Dr. Michael B. Lee, DDS and Dr. Kenneth A. Stein, M.D. pursuant to Rule 706. See Order of Nov. 22, 2017 at 1 (Doc. 146).

         The Court observed that the "selected experts have high hourly rates and minimum fees." Id. Dr. Lee charges $500 per hour for document review, report preparation, and trial preparation, and $800 per hour for depositions, with a two-hour minimum, and his fee for trial testimony is "contingent upon time of trial/travel expenses." Dr. Lee resides in Cincinnati, Ohio. (Doc. 141, Ex. A at 7.) Under Dr. Stein's fee schedule, he charges $575 per hour for consulting, with a nonrefundable retainer of $1, 150 prior to initial record review, $150 per hour for time away from the office not spent preparing or testifying, a minimum of $2, 495 for appearance at any deposition or court appearance of up to four hours, and $625 per hour for any deposition or court appearance time over four hours. Among numerous other requirements, Dr. Stein requires a non-refundable payment of $1, 247 (half of the testimony appearance fee) to schedule an appearance, and payment in full of various fees at least one month in advance of any appearance at deposition or trial. (Doc. 144, Ex. A at 11-13.)

         Because of the Court's concern over the experts' high hourly rates and minimum fees, it encouraged the parties to "minimize expenses where possible" and ordered the parties to prepare and submit a joint budget, including an itemized list of all anticipated expert fees through trial. (Doc. 146 at 1.) The parties twice moved to extend the deadline to submit a proposed budget. Despite granting both extensions, the parties failed to come to an agreement.

         Plaintiff now unilaterally submits a proposed budget for the two experts calling for approximately sixty hours of work for Dr. Lee, the dental expert, and fifty hours of work for Dr. Stein, the medical expert, at a total cost of almost $60, 000. Plaintiff provides no explanation as to why each expert should require fifteen hours for "case review" and fifteen hours for "preparation of report." Although defendants have described the medical records as "voluminous, " the Court remains uninformed as to the number of documents each expert would need to review. Defendants assert, however, that they have retained one expert who completed a review of all the case medical records in approximately twelve hours and a full report in approximately six hours. (Doc. 160 at 2.)

         In their opposition to plaintiffs motion, the defendants criticize plaintiffs proposed budget as requiring too much time for the review of records and preparation of expert reports, particularly given the limited focus of the experts' review. Defendants suggest that the experts should be deposed by telephone in lieu of live trial appearances, and that the party seeking to offer the testimony of either witness at trial bear the expense of that testimony. The Court notes that while defendants offer numerous criticisms of plaintiffs proposal, they fail to submit a proposed budget of their own.

         Defendants also assert they did not consent to the appointment of experts. Plaintiff filed the motion for appointment of experts on March 10, 2017, and defendants neither responded to the motion nor sought additional time to do so. The Court did not grant the motion until August 31, 2017. Defendants waived any opposition to the appointment of experts by their silence, and will not now be heard to argue that they did not consent to the appointment of experts when they had full opportunity to object or otherwise comment on plaintiffs motion to appoint experts.

         The Court ordered the parties to submit a joint budget and requested that the parties attempt to minimize costs. The parties appear to have made little effort to adhere to the Court's previous order; plaintiffs motion states that counsel for the parties participated in a telephone conference for a mere twenty minutes in an ...


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