Evans v. Huss
| Decision Date | 09 February 1981 |
| Docket Number | No. 2-479A105,2-479A105 |
| Citation | 415 N.E.2d 783 |
| Court | Indiana Appellate Court |
| Parties | Lowell EVANS and Thelma Evans, Appellants (Plaintiffs Below), v. Royce HUSS, Jerome Schlieper, and Huss & Schlieper, a partnership, Appellees (Defendants Below), Allison, Steinhart & Zook, Winamac Construction Company, Inc., a corporation, Fidelity and Deposit Company, Burrows Equipment Company, and Phillip Kruzick, Non-Participating Appellees (Defendants Below). |
Phillips, Phebus, Tummelson & Bryan, Urbana, Ill., Smith, Pearce, Barr & Howard, Noblesville, for appellants; Paul Smith, Noblesville, Joseph W. Phebus and Janet A. Flaccus, Urbana, Ill., of counsel.
Emerson Boyd, Julia M. Blackwell, Locke, Reynolds, Boyd & Weisell, Indianapolis, for appellees, Royce Huss, Jerome Schlieper, and Huss & Schlieper, a partnership.
Rocap, Rocap, Reese & Young, Cadick, Burns, Duck & Neighbours, Indianapolis, for non-participating appellees.
Lowell and Thelma Evans (the Evanses) appeal from an order by the Hamilton Superior Court that they pay part of the fees of an expert witness who was to testify on behalf of the defendants, Royce Huss, Jerome Schlieper, and their partnership, Huss & Schlieper (the partnership), the expert's deposition having been used in the Evanses' case-in-chief.
We affirm.
Lowell Evans was injured in the collapse of a grain elevator for which the partnership was one of the materialmen. He and his wife brought suit against a number of parties, including the partnership; the substance of that suit is not material to this appeal.
Both the Evanses and the partnership retained experts, whom they expected to call as witnesses at trial. In the course of discovery, the names of the experts became known to all parties, and by the time of trial, the partnership had deposed the Evanses' expert, and the Evanses had deposed the partnership's expert. This was not done pursuant to any court order. In each case, counsel sent a letter to opposing counsel requesting a deposition, and the request was honored. When the Evanses' expert was deposed, the five defendants, including the partnership, paid the expert a total of $569.42 for preparing for, responding to, and reading the deposition.
The process, at least in its earlier stages, was repeated, beginning August 28, 1978, when the Evanses' attorney sought to depose M. Dean Wurth, the partnership's expert. Notice of the deposition was sent to all parties on September 12, and the deposition was taken September 25. Wurth billed the partnership as follows: $410.00 for time and travel in responding to the deposition, including reading, correcting, and signing it; and $2,380.00 for computations and drawings which the partnership says were provided the Evanses by Wurth.
On September 29, the partnership filed a motion alleging that the Evanses intended to use Wurth's deposition and the materials Trial was held on the principal case from October 2 to October 12, 1978. At the end of the Evanses' case-in-chief, the partnership obtained judgment on the evidence. The partnership was thus never to call Wurth as a witness; but the Evanses had used his deposition during the presentation of their case.
he provided at trial without compensating the partnership. The motion sought an order under Ind. Rules of Procedure, Trial Rule 26(B)(3) that the Evanses pay the partnership $2,790.00. 1
The trial court noted this, and on December 4, ordered the Evanses to pay the partnership's attorneys the full amount of $2,790.00.
The Evanses enumerate five issues in this case, which we consolidate into two questions:
1. When a party deposes his opponent's expert under an informal procedure, without benefit of an order under TR. 26(B)(3)(a), may the opponent seek an order under TR. 26(B)(3)(c) for the deposing party to defray the expert's fees?
2. Was the evidence sufficient to support the trial court's award of $2,790.00 to the partnership?
The Evanses note that the only possible source of the trial court's authority to assess expert witness fees is TR. 26(B)(3)(c); 2 but since the language relating to the payment of expert witness fees refers to "discovery permitted under subdivision (B)(3)(a) of" Rule 26, an order for the payment of fees should be available only in advance of the discovery, and only pursuant to an order issued under Rule 26(B)(3)(a). That being the case, the most the trial court could have awarded the partnership would be the amount of "a reasonable fee for time spent in responding to discovery," an amount which is indisputably less than $2,790.00. Further, the Evanses argue that even if they are liable for a portion of Wurth's fees, the trial court's order was based on so little evidence as to amount to an abuse of discretion.
The partnership responds that the narrow reading which the Evanses propose for TR. 26(B)(3)(c) would sharply curtail a trial court's discretion to deal with instances like this, in which parties have attempted to manage discovery informally without intervention of the trial court. The partnership says that it did not insist on a 26(B)(3)(a) order when the Evanses sought to depose Wurth because the partnership believed that the Evanses would seek from Wurth only his proposed testimony, and not any findings or opinions which they might use in their case at trial. This latter use of an opponent's expert, the partnership claims, is very like the use contemplated by TR. 26(B)(3)(a), and so it is within the trial court's discretion to determine at any reasonable time whether and how the deposed expert's fees are to be apportioned between the parties.
When a party deposes his opponent's expert under an informal procedure, without benefit of an order under TR. 26(B)(3)(a), may the opponent seek an order under TR. 26(B)(3)(c) for the deposing party to defray the expert's fees?
CONCLUSION A motion under TR. 26(B)(3)(a) is not a prerequisite to relief under TR. 26(B)(3)(c).
As Frederic William Maitland said many years ago in his Lectures on Equity, equity came "not to destroy the law, but to fulfill it." And so it is with TR. 26(B)(3)(c):
(c) The court may require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery, and, with respect to discovery permitted under subdivision (B)(3)(a) of this rule, require a party to pay another party a fair portion of the fees and expenses incurred by the latter party in obtaining facts and opinions from the expert.
If parties voluntarily adopt simplified, informal, and nonadversarial methods of discovery, then the Trial Rules should not be read to discourage such informal methods.
In the past, the courts have looked upon the deposition of experts before trial with disfavor. Some courts regarded the opinions of experts before trial as being a kind of work product, and therefore privileged. State ex rel. Dudek v. Circuit Court of Milwaukee County, (1967) 34 Wis.2d 559, 150 N.W.2d 387, 35 A.L.R.3d 377. Or, more commonly, it was thought unfair that an expert paid by one party should divulge his expensive knowledge to another free of charge. "To permit a party by deposition to examine an expert of the opposite party before trial, to whom the latter has obligated himself to pay a considerable sum of money, would be equivalent to taking another's property without making any compensation therefor." Lewis v. United Airline Transport Corporation (W.D.Penn.1940) 32 F.Supp. 21, 23.
When deposition of an expert was permitted at all in the federal courts, it was at the discretion of the trial court. Boynton v. R. J. Reynolds Tobacco Company, (D.Mass.1941) 36 F.Supp. 593. And generally, the discovery order was subject to a protective order providing for the division of the expert's fees. Henlopen Hotel Corporation v. Aetna Insurance Company, (D.Del.1963) 33 F.R.D. 306; Roe v. Cherry-Burrell Corporation, (1971) 28 Mich.App. 42, 184 N.W.2d 350. The question of dividing the expert's fees was regarded as one of relieving unfairness, to be resolved in the discretion of the trial court. Dresser Industries, Inc. v. Doyle, (N.D.Ill.1966) 40 F.R.D. 478.
It was as a result of the growing consensus that expert witnesses should be discoverable, subject to the equitable protection of the trial courts, that Fed.R.Civ.P. 26(B)(4) and TR. 26(B)(3) were drafted. TR. 26(B)(3)(a) and (b) 3 are designed to provide trial courts with guidance as to when they may order the discovery of an expert. TR. 26(B)(3)(b) is directed to the discovery of the expert as an anticipated witness, see 2 Harvey, Indiana Practice, Civil Code Study Commission Comments, General Comment on Discovery Rules, p. 463-4; whereas TR. 26(B)(3)(a) governs the discovery of an expert as an expert, see Harvey, supra, p. 462.
Consistent with the underlying notion that it is only fair that one who deposes another's expert as an expert should pay a portion of the expert's fees, TR. 26(B)(3)(c) puts it within the discretion of the trial court to apportion the deposed expert's fees between the parties. But the rule remains one of equity; it is phrased in terms of what the court may require the deposing party to do. If we are to be true to the equitable foundation of this rule, we must read it so as not to restrict the power of trial courts to set the parties to rights in circumstances not within the exact letter of the rule.
While there is no Indiana case interpreting this rule since its adoption, the Civil Code Study Commission's comment supports our perspective:
Under subdivision (b)(3)(C), the court is authorized to issue protective orders, including an order that the 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...
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...parties voluntarily adopt informal methods of discovery, the trial rules should not be read to discourage such methods. Evans v. Huss (1981), Ind.App., 415 N.E.2d 783. However, the court was within its province in determining Brown had abused discovery despite the informality accepted by th......
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...the other side has paid, often a substantial sum.Fed.R.Civ.P. 26 advisory committee's note (emphasis added); see also Evans v. Huss, 415 N.E.2d 783, 786 (Ind.Ct.App.1981) (“it is only fair that one who deposes another's expert as an expert should pay a portion of the expert's fees”).[10] Th......