In a First-Party Insurance Coverage case, a universal holding was rendered under the Federal Rules of Civil Procedure. Plainly stated, a party does not have to pay in advance for the privilege, as it were, of deposing another party's Expert Witness. Download Bartram, LLC v. Landmark American Insurance Co. (N.D. Fla. Case No. 1.10.28, Order of USMJ Filed February 16, 2011) PUBLIC ACCESS.
The U.S. Magistrate-Judge's holding in this case came under Federal Rule of Civil Procedure 26(b)(4)(E), a Rule of Civil Procedure which deals with Experts and which has many counterparts in State Court Rules of Civil Procedure. Despite very little case law addressing the issue, this Court announced that it was following the holdings reached in every other case found by the Court:
The Rule provides that the party deposing the expert must reimburse the expert for the "time spent" in responding to discovery. The Rule thus contemplates payment for services that have occurred and not for services that will take place -- absent of course a situation which would result in manifest injustice. As such, the Rule contemplates payment after the services have been incurred. Indeed, that is the only way the Rule would make sense.
Id. at unnumbered third paragraph of attached opinion.
While this holding was reached in a First-Party Insurance Coverage case, it is clearly not confined to that category of cases. It arguably applies to all cases in which one party's Experts impermissibly [or, illegally] attempt to condition their deposition testimony on advance payment.
Discovery from Expert Witnesses in First-Party Insurance Cases, including both Coverage and Bad Faith Cases, is the subject of ยง12:18 in Dennis J. Wall, "Litigation and Prevention of Insurer Bad Faith" (Shepard's/McGraw-Hill Second Edition; West Publishing Company 2010 Supplement, Third Edition in progress for publication in Spring, 2011).
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