United States District Court, D. Vermont
ENTRY ORDER DENYING PLAINTIFF'S MOTION FOR AN
ORDER REQUIRING DEFENDANT TO PAY PLAINTIFF'S EXPENSES AND
FEES (Doc. 116)
Christina Reiss, Chief Judge
before the court is Plaintiff Teresa Gade's motion for an
order requiring Defendant State Farm Mutual Automobile
Insurance Company ("State Farm"), her automobile
insurance carrier, to pay expenses and fees that she incurred
in opposing Defendant's motion to compel. (Doc. 116.) The
court held oral argument on January 21, 2016, at which time
the court took the motion under advisement.
is represented by Todd D. Schlossberg, Esq. State Farm is
represented by Richard H. Wadhams, Jr., Esq. and Robin O.
Factual and Procedural Background.
January 3, 2008 and May 21, 2009, Plaintiff was involved in
automobile collisions that she alleges caused her physical
injury, pain, suffering, and loss of enjoyment of life. State
Farm denied her claims for uninsured/underinsured motorist
benefits. Plaintiffs Complaint seeks to recover
uninsured/underinsured motorist benefits and damages arising
out of the alleged collisions.
October 14, 2014, Plaintiff disclosed her biomechanical
expert, John Smith, P.E. Defendant asked that Mr. Smith have
his files with him at the time of his deposition, but
Defendant did not ask to inspect his files before or during
the deposition. On April 17, 2015, Defendant deposed Mr.
Smith via Skype. During the deposition, Defendant's
attorney asked Mr. Smith for a "complete copy of [his]
file, other than communication between [him] and [Plaintiffs
attorney] . . . [including] everything that [he had]
self-generated[.]" (Doc. 114-1 at 2.) Defendant's
attorney responded "[y]es" when asked if Mr. Smith
should include "[his] calculations[.]" Id.
April 20, 2015, Plaintiff produced a copy of Mr. Smith's
file, including eight pages of data and calculations in PDF
format. See Doc. 110 at 3 & n.2 (noting production
of Mr. Smith's thirty-five page report, which, according
to Plaintiff, "amply detailed] the facts and data he
considered in forming [his] opinions" and included
"his cv, a statement of his fees, and his list
of four-years' prior testimony"). Defendant contends
that this production did not provide a means for it to
determine all of the underlying calculations Mr. Smith used
to arrive at his conclusions. On July 28, 2015, August 20,
2015, and September 10, 2015, Defendant requested Mr.
Smith's files in Excel format, which Defendant believed
would show the underlying calculations and inputs on which
Mr. Smith relied. During a September 10, 2015 telephone
conference, Plaintiff advised Defendant that if Mr.
Smith's files existed in Excel format, Plaintiff would
September 15, 2015, October 7, 2015, and October 13, 2015,
Defendant made additional written requests for Mr.
Smith's files in Excel format. On October 13, 2015,
Plaintiff responded that she would not produce Mr.
Smith's files in Excel format because his files,
including his "unredacted calculations" and
"the applicable formulas[, ]" had previously been
produced in PDF format. (Doc. 106-8 at 1.) Plaintiff invited
Defendant to cite "some applicable rule or decision that
allows a party to compel another party's expert to
produce work-product files in a particular format[.]"
Id. Although Defendant certified that it made the
foregoing informal requests for Mr. Smith's files in
Excel format, Defendant did not make a formal request for
this information at any time.
October 30, 2015, Defendant filed a motion to compel
production of Mr. Smith's files in Excel format. On
November 13, 2015, Plaintiff filed an opposition to
Defendant's motion and attached an annotated version of
Mr. Smith's data pages, although Plaintiff did not
produce Mr. Smith's files in Excel format. These
annotations included "detailed explanations of the
calculations, equations, inputs, and entries, with colored
explanation notes." (Doc. 116 at 5-6.) Plaintiff further
offered that Mr. Smith was "willing to confer and
discuss the calculations with the defense expert at no
parties agree that Defendant's motion to compel is now
moot. Defendant does not seek attorney's fees or expenses
in connection with that motion. Plaintiff, however, requests
an order requiring Defendant to pay her expenses and fees
incurred in opposing Defendant's motion. In support of
her request, Plaintiff submitted an invoice from Mr. Smith in
the amount of $1, 330.00 for the three and a half hours he
spent reviewing Defendant's motion to compel and
"[p]repar[ing] detailed annotation of calculation sheets
to assist [the] defense expert with understanding basic
equations and physics." (Doc. 117-2 at 1.)
the January 21, 2016 hearing, Defendant represented that a
"good deal" of the parties' discovery had been
informal, including requests from both sides for various
items of discovery. With respect to Plaintiffs motion for fees
and expenses, Defendant reported that Plaintiff did not
advise it ahead of time that Mr. Smith would be performing
additional work to produce his files in an electronic
Legal Conclusions and Analysis.
Whether Mr. Smith's Underlying Calculations are Within
the Scope of Mandatory Expert Disclosure.
of the Federal Rules of Civil Procedure provides for the
discovery of relevant, nonprivileged information, which
"need not be admissible in evidence to be
discoverable." Fed.R.Civ.P. 26(b)(1). Rule 26(a)(2)
governs the mandatory production of expert disclosures and
requires that an expert disclosure be accompanied by a report
containing "the facts or data considered by the witness
in forming" his expert opinions. Fed.R.Civ.P.
26(a)(2)(B)(ii). Although Plaintiff objected to producing Mr.
Smith's files in Excel format, it is undisputed that the
supplemental expert production she attached to her opposition
to Defendant's motion to compel includes facts and data
considered by her expert witness in forming his opinions and
that Mr. Smith relied on this data to ...