New York v. Solvent Chemical Co.

210 F.R.D. 462, 2002 U.S. Dist. LEXIS 18601, 2002 WL 31190938
CourtDistrict Court, W.D. New York
DecidedSeptember 27, 2002
DocketNo. 83-CV-1401C
StatusPublished
Cited by40 cases

This text of 210 F.R.D. 462 (New York v. Solvent Chemical Co.) is published on Counsel Stack Legal Research, covering District Court, W.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
New York v. Solvent Chemical Co., 210 F.R.D. 462, 2002 U.S. Dist. LEXIS 18601, 2002 WL 31190938 (W.D.N.Y. 2002).

Opinion

INTRODUCTION

CURTIN, District Judge.

Presently before the court is defendant and third-party plaintiff Solvent Chemical Company’s (“Solvent”) motion pursuant to Fed.R.Civ.P. 26(b)(4)(C) seeking an order compelling third-party defendants, Reco-chem, Inc. and Joseph Kuchar (collectively, “Recochem”) to pay the reasonable fees and expenses incurred by Dr. E. Bruce Nauman, Solvent’s expert, in responding to Reeo-ehem’s request for deposition. Item 1007. Solvent asks the court to order Recochem to pay $8,855.06 for Dr. Nauman’s time and expenses pursuant to the deposition. Item 1009, 116. Solvent has also filed a motion, pursuant to this court’s direction, Item 1045, seeking reasonable attorneys fees and costs incurred in bringing and defending Solvent’s motion to compel payment of expert fees and costs. Item 1057.

BACKGROUND

On September 24,1999, Solvent contracted with Technical Advisory Services for Attorneys (“TASA”) for the services of Dr. E. Bruce Nauman, a Ph.D. in Chemical Engineering at Rensselear Polytechnic Institute in Troy, New York. Item 1058, Ex. B. TASA is an organization that locates and provides expert services. Id., Ex. A. Through TASA Solvent retained Dr. Nauman to provide expert testimony in its third-party action against Recochem. Item 1009, H 2. Dr. Nau-man has submitted affidavits and an expert report on the issue of whether certain transactions involving mixed dichlorobenzene material at issue in the Solvent^Recochem litigation constituted arrangements for disposal within the meaning of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. § 9601, et seq. On May 1, 2001, Solvent submitted an affidavit prepared by Dr. Nauman in support of its motion for summary judgment against Recochem. Item 997. In addition, [466]*466on May 31, 2001, Solvent submitted Dr. Nau-man’s expert report pursuant to Fed.R.Civ.P. 26(a)(2)(D) and the court’s October 30, 2000 scheduling order. Item 1009,113.

On May 2, 2001, Recochem’s attorney, Mark White, Esq., informed Solvent that he wished to depose Dr. Nauman. Id. at 114; Ex. A. After consulting with the court, the parties agreed that the deposition would take place in Buffalo, New York, on June 7, 2001. Id. On June 6, 2001, Dr. Nauman traveled to Buffalo to prepare for his deposition. Id. at 115. On June 7, 2001, Mr. White deposed Dr. Nauman for approximately nine hours. Id. During the deposition, Solvent’s attorney informed counsel for Recochem that Recochem would be charged for Dr. Nauman’s time in responding to its request for the deposition, pursuant to Fed.R.Civ.P. 26(b)(4)(C). Id.

On June 12, 2001, TASA sent a bill to Mr. White requesting payment for Dr. Nauman’s time and expenses incurred in preparing for and attending the deposition. Id. at H 6; Ex. B. The bill set forth the following costs:

6/1/01 thru 6/6/01 Preparation for deposition 17.75 hours

6/6/01 thru 6/8/01 Travel to & from deposition 4.50 hours

6/7/01 Deposition 9.00 hours

6/7/01 Debriefing 2.00 hours

$33.25 hours @ $255.00/hour........................ $ 8,478.75

Expenses:

Airfare, taxi, meals, local travel parking and hotel....... 886.31

$ 9,365.06

OUTSTANDING INVOICE DATED 6/6/01 $18,303.72

TOTAL AMOUNT DUE $27,668.78

Id. On June 15, 2001, Solvent received a copy of the TASA bill summarizing the costs related to the Nauman deposition. Solvent counsel, Christopher Dow, faxed Mr. White advising him to deduct from the total amount due the outstanding balance and the debriefing costs. The letter concluded, “[p]ursuant to FRCP § 26(b)(4)(c), this would make the total your client owes TASA $7,968.75.” Item 1038, Ex. E.

Also on June 15, 2001, Mr. White faxed a letter to Mr. Dow, in which he stated, “I never contracted with TASA to pay any expert witness fee. For you to expect my client to pay any portion of this bill, much less your preparation and debriefing time is laughable. I do not intend to pay any portion of this bill.” Item 1009, Ex. C. In response to Mr. White’s letter, Solvent attorney, Dennis P. Harkawik, faxed a letter to Mr. White directing him to Fed.R.Civ.P. 26(b)(4)(C)1 and advising him that if Reco-chem failed to comply with this rule, Solvent would file a motion with the court to compel Recochem’s compliance. Id., Ex. D. Mr. White responded with a letter that same day, noting that the rule “requires the party to pay a reasonable fee for obtaining facts and opinions from the expert. Preparation, debriefing and travel time are hardly reasonable costs.... Finally, I do not intend to pay any portion of the bill that goes to TASA. Their fees are outrageous, especially for a witness that has no knowledge on the pertinent issues.” Id., Ex. E. Upon receiving Mr. White’s letter, Mr. Harkawik telephoned Mr. White’s office in an attempt to resolve this matter without court intervention. Item 1009, 1111. Mr. White never returned the phone call. Id.

Solvent filed this motion to compel on June 18, 2001, Item 1007, requesting that the court order Recochem to pay TASA $8,855.06 for Dr. Nauman’s time and expenses in responding to Recochem’s request for a deposition, and to reimburse Solvent for its reasonable fees and costs incurred in pursuing the mo[467]*467tion. Item 1009, p. 6. By e-mail on June 21, Mr. White offered to settle the matter by paying $2,250.00 as expert fees to “encompass the nine hours of deposition time for Dr. Nauman[ ].” Item 1081, Ex. I. In the e-mail, Mr. White objected that he did not intend to pay for the time Solvent spent “educating [its] witness,” nor did he intend to pay for the expert’s travel expenses. Id. He claimed that because the witness had no qualifications, he still felt it would be “manifestly unjust” to require his client to pay any fee. Id.

Mr. Harkawik declined Mr. White’s offer in an e-mail dated June 22, 2001. Item 1081, Ex. J. Mr. Harkawik observed that Mr. White’s “two previous letters to me stated that you refused to pay any money at all. for the deposition of our expert, which you are required to pay for under the federal rules, and you refused to answer my telephone call trying to resolve the matter — which required Solvent to move to compel for the third time against Recochem.” Id. Mr. Harkawik proposed a counter offer: Recochem would “pay for three hours of Dr. Nauman’s preparation time, all of his travel expenses, the nine hours of the deposition, and the costs to Solvent of being forced to draft and file yet another Motion to Compel.” Id. Recochem refused this offer. Item 1081,1112.

On August 1, 2001, Recochem submitted a response in opposition to Solvent’s motion to compel. Item 1021. Solvent then submitted an affidavit and Reply Memorandum of Law. Items 1038 and 1039.

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210 F.R.D. 462, 2002 U.S. Dist. LEXIS 18601, 2002 WL 31190938, Counsel Stack Legal Research, https://law.counselstack.com/opinion/new-york-v-solvent-chemical-co-nywd-2002.