Garrido v. Team Auto Sales , 913 N.W.2d 95 ( 2018 )

#28390-aff in pt & rev in pt-SRJ
2018 S.D. 41
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
ALEJANDRO GARRIDO, TANYA
HOOF, and TANYA HOOF as
limited conservator for the
minor child M.I., Plaintiffs and Appellants,
v.
TEAM AUTO SALES, INC., Defendant and Appellee.
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APPEAL FROM THE CIRCUIT COURT OF
THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA
****
THE HONORABLE ROBERT A. MANDEL
Judge
****
HEATHER M. LAMMERS BOGARD
CHRISTOPHER A. CHRISTIANSON
STEPHEN C. HOFFMAN of
Costello, Porter, Hill, Heisterkamp,
Bushnell & Carpenter, LLP Attorneys for plaintiffs and
Rapid City, South Dakota appellants.
GARY D. JENSEN
JESSICA L. LARSON of
Beardsley, Jensen & Lee, Prof LLC Attorneys for defendant and
Rapid City, South Dakota appellee.
****
CONSIDERED ON BRIEFS
APRIL 16, 2018
OPINION FILED 05/23/18
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JENSEN, Justice
[¶1.] Alejandro Garrido and Tanya Hoof purchased a used vehicle from
Team Auto Sales, Inc. (TAS), a used-car dealer. In this action, Garrido, Hoof, and
Hoof’s six-year old son, M.I., (Appellants) allege that the vehicle was sold without a
muffler and that they suffered carbon monoxide poisoning from the vehicle. The
circuit court determined that Appellants failed to generate a question of fact as to
causation and granted TAS’s motion for summary judgment on all claims. We
affirm in part, reverse in part, and remand.
Background
[¶2.] Hoof and Garrido were involved in a romantic relationship and lived
together with M.I. and several other family members in Rapid City. After Hoof’s
personal vehicle became inoperable, she decided to purchase another one. On
February 10, 2014, Hoof and Garrido went to TAS to search for a vehicle.
[¶3.] TAS showed Hoof and Garrido a 1991 Honda Accord it had for sale.
The vehicle had over 180,000 miles on it, had been taken in on a trade, and was
valued at $1,500. An employee of TAS took the car for a test drive, but other than
cleaning it, TAS had not inspected or done any other work on the vehicle. Hoof and
Garrido acknowledged that they knew the car would likely have mechanical issues,
however, Garrido planned to fix whatever was wrong. The vehicle had to be jump-
started before it could be test driven. Hoof and Garrido took the vehicle for a short
drive around the block. Hoof noticed that the vehicle smelled of gasoline and that it
sounded like a lawnmower when running. Garrido observed that the vehicle was
louder than what he would have expected from a vehicle with its original exhaust
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system intact. Neither Hoof nor Garrido discussed the smell or noise with anyone
at TAS. Garrido also came back and drove the vehicle a second time before
purchasing it.
[¶4.] Hoof paid the $1,500 purchase price for the vehicle and Garrido signed
the purchase order. The agreement stated that the vehicle was being sold “AS IS–
NO WARRANTY.” The TAS salesman claimed that he had explained the terms of
the agreement to Garrido, that he had told Garrido he should have the car
inspected, and that the car was being sold “as is” without any warranties. Garrido
understood he was purchasing the vehicle without any warranties and that he could
have had the vehicle inspected before purchasing it.
[¶5.] In the following weeks, Hoof complained that the smell of exhaust
coming from the vehicle was giving her headaches. Garrido thought the car may
have had an exhaust leak. He checked under the hood but could not locate any
leaks and did not observe a missing muffler. Hoof and Garrido continued to drive
the vehicle and dealt with the exhaust smell by driving with the windows open.
Hoof and Garrido did not have the car inspected by a mechanic, but the oil was
changed approximately one month after the purchase. The oil-change shop noted
several fluid leaks, but did not list the muffler as missing.
[¶6.] On March 31, 2014, Hoof and M.I. were both admitted to the
emergency room. M.I. had been coughing and wheezing for approximately two days
before the ER visit and was prescribed a nebulizer to treat his symptoms. Hoof was
having issues with anxiety, had difficulty breathing, and had been coughing. She
had also claimed to have been physically assaulted by Garrido the previous night.
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Hoof was prescribed Valium and released. There is no evidence connecting this
episode with the carbon monoxide poisoning the next day.
[¶7.] On April 1, 2014, 50 days after purchasing the vehicle, Appellants took
the vehicle to look at an apartment they were considering renting. When they
arrived at the apartment complex, the three stayed inside the vehicle for 30 to 45
minutes while waiting for the landlord to show them the apartment. The vehicle
was parked and running throughout this time. The vehicle’s windows were open
most of this time. However, Appellants closed the windows when it started to rain.
When the landlord arrived, all three left to go inside. Garrido claimed that as M.I.
got out of the car, he fell. Garrido picked M.I. up and asked if he was okay. M.I.
said no and that he was not feeling well. Garrido carried M.I. over his shoulder
while looking at the apartment.
[¶8.] After the apartment tour, M.I. indicated he was feeling better.
However, after M.I. got back into the vehicle, he began seizing. Hoof and Garrido
rushed M.I. to the emergency room at Rapid City Regional Medical Center. By the
time they arrived, M.I. had stopped seizing but was not breathing. The admitting
physician suspected M.I. was suffering from carbon monoxide poisoning because he
had no history of seizures and smelled of exhaust fumes. M.I.’s carbon monoxide
levels were checked immediately and were found to be toxic at 45 parts per million
(ppm). Hoof and Garrido’s carbon monoxide levels were also checked and registered
29 ppm and 26 ppm respectively. All three were diagnosed with carbon monoxide
poisoning and placed in hyperbaric oxygen chambers for treatment.
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[¶9.] After Appellants arrived at the hospital, the Rapid City Fire
Department was called to inspect the Honda. The Fire Department unit that
specialized in handling carbon monoxide incidents was unavailable, so another unit
with limited experience in handling such incidents responded. This unit arrived 20
minutes later and completed a carbon monoxide test of the vehicle’s passenger
compartment approximately 38 minutes after the vehicle was vacated by the
Appellants. The tests showed that carbon monoxide was present in the passenger
compartment at the level of 16 ppm. This was within a range generally considered
non-toxic and would not cause an acute carbon monoxide exposure based on the
length of time Appellants reported being in the vehicle. First responders noticed a
smell of gas, that the vehicle did not have a muffler, and that the end of the exhaust
pipe was positioned near the rear seat. The first responders started the vehicle and
ran it for two minutes with all the doors and windows closed. Because the vehicle
compartment still registered 16 ppm after two minutes, no further action was taken
with respect to the vehicle. Garrido installed a muffler on the vehicle shortly after
the April 1, 2014 incident.
[¶10.] Appellants filed a complaint against TAS seeking damages for carbon
monoxide poisoning they alleged was caused by the absence of a muffler on the
vehicle. The complaint asserted TAS was liable for damages on the theories of strict
liability, negligence, negligent misrepresentation, intentional misrepresentation,
negligent infliction of emotional distress, intentional infliction of emotional distress,
breach of contract, breach of express warranty, and breach of implied warranty.
TAS motioned for summary judgment, arguing that the claims should be dismissed
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as a matter of law and that the evidence was insufficient to establish causation as a
matter of law.
[¶11.] At the April 24, 2017 summary judgment hearing, the circuit court
expressed concern with causation and the theories of liability. The circuit court
deferred ruling on the motion and granted Appellants’ request for a continuance to
obtain additional expert testimony on causation. Appellants obtained an expert
report from Joseph Tjaden, a paramedic and Captain of the Rapid City Fire
Department Hazardous Materials Response Team. Tjaden was not present at the
April 1, 2014 incident but headed the unit that normally handled carbon monoxide
incidents. In his deposition, Tjaden stated:
Vehicle exhaust contains dangerous materials, with [c]arbon
[m]onoxide being the dominant material which has acute impact
on the body. . . . This is a primary reason that vehicle exhaust
exists above the cabin or behind the rear wheels, to help keep
the exhaust away from vehicle openings. Carbon [m]onoxide is a
colorless, odorless gas present in the combustion of fossil fuels
and incomplete combustion of natural materials.
Tjaden also concluded that M.I.’s symptoms were “consistent with an acute
exposure [to] high quantities of [c]arbon [m]onoxide,” and found evidence that M.I.
was “feeling sick on the way to the apartment viewing, the fall and weakness at the
apartment, the [testimony that M.I.] possibly felt better in fresh air, but the ill
feeling increased upon returning to the vehicle” constituted a “strong” indication
that “the vehicle was the cause of the poisoning.” Tjaden also concluded that having
the car parked in one place with the muffler missing and windows open for an
extended time would allow carbon monoxide to enter the vehicle and cause the high
levels of exposure Appellants displayed at the hospital. He also opined that because
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the exhaust pipe of the vehicle ended near the rear seat, it was more likely that
exhaust had enveloped the interior of the vehicle. Tjaden also noted that carbon
monoxide can dissipate rapidly when not in a contained environment and that the
opening of the vehicle’s doors at the hospital by Appellants and the fire department,
combined with the breeze on the day of the incident, would have caused the carbon
monoxide levels in the vehicle to quickly lower when the engine was not running.
Tjaden also suggested that the unit responding to the incident erred because it
tested the vehicle running with the doors and windows closed, which did not
recreate the situation that existed when Appellants were sitting in the vehicle with
the windows open for 30 to 45 minutes.
[¶12.] Appellants also designated one of their treating physicians, Dr. Brooke
Eide, as an expert witness. TAS noticed the deposition of Dr. Eide on March 20,
2017. His deposition was held on March 21, 2017. Dr. Eide testified that
Appellants all experienced carbon monoxide poisoning and that the exposure was
caused by exhaust based on the fact that the initial treating doctor could smell
exhaust fumes emanating from M.I. upon his arrival at the hospital. Dr. Eide
charged $500 per hour for his services. TAS paid $375 for the three-quarter hour
deposition time for Dr. Eide but refused to pay for any other time billed by Dr. Eide
before or after the depositions.
[¶13.] TAS renewed its motion for summary judgment and scheduled the
motion for hearing. The circuit court granted summary judgment determining that
Appellants failed to present evidence that the missing muffler caused the carbon
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monoxide poisoning. After determining there were no genuine issues of material
fact as to causation, the circuit court did not reach the issues of liability.1
[¶14.] At the summary judgment hearing, Appellants moved for the circuit
court to require TAS to pay $2,000 of Dr. Eide’s bill for time that Appellants claimed
was attributable to providing the discovery requested by TAS. The court denied the
motion and determined that TAS was not responsible for that amount. Appellants
appeal, raising the following issues for our review:
1. Whether the circuit court erred in granting TAS’s motion
for summary judgment on the basis that there was
insufficient evidence to prove causation.
2. Whether the circuit court erred in denying Appellants’
request for fees incurred by their expert in preparing for a
deposition noticed by TAS.
Standard of Review
[¶15.] “Our standard of review on a grant or denial of summary judgment
under SDCL 15-6-56(c) is well settled.” McKie Ford Lincoln, Inc. v. Hanna,
2018 S.D. 14, ¶ 8, 907 N.W.2d 795, 798.
Summary judgment is proper where, the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to
judgment as a matter of law. We will affirm only when no
genuine issues of material fact exist and the law was applied
correctly. We make all reasonable inferences drawn from the
facts in the light most favorable to the non-moving party. In
1. Appellants argue in their brief that the circuit court erred in granting TAS’s
motion for summary judgment on their claims for negligence, breach of
implied warranty, strict liability, intentional misrepresentation, and
intentional infliction of emotional distress. Because the circuit court did not
rule on the liability issues alleged by each of the three Appellants, we decline
to address them.
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addition, the moving party has the burden of clearly
demonstrating an absence of any genuine issue of material fact
and an entitlement to judgment as a matter of law.
Id. (citations omitted) (quoting Hofer v. Redstone Feeders, LLC, 2015 S.D. 75, ¶ 10,
870 N.W.2d 659, 661-62).
Analysis
1. Whether the circuit court erred in granting TAS’s
motion for summary judgment on the basis that there
was insufficient evidence to prove causation.
[¶16.] “Proximate cause is defined as ‘a cause that produces a result in a
natural and probable sequence and without which the result would not have
occurred.’” Howard v. Bennett, 2017 S.D. 17, ¶ 7, 894 N.W.2d 391, 395 (quoting
Hamilton v. Sommers, 2014 S.D. 76, ¶ 39, 855 N.W.2d 855, 867). “This Court has
further defined proximate cause as ‘an immediate cause and which, in natural or
probable sequence, produced the injury complained of. Furthermore, for proximate
cause to exist, the harm suffered must be found to be a foreseeable consequence of
the act complained of.’” Hamilton, 2014 S.D. 76, ¶ 39, 855 N.W.2d at 867 (quoting
Weiss v. Van Norman, 1997 S.D. 40, ¶ 13, 562 N.W.2d 113, 116-17). “Causation is
generally a question of fact for the jury except when there can be no difference of
opinion in the interpretation of the facts.” Id. (quoting Weiss, 1997 S.D. 40, ¶ 13,
562 N.W.2d at 116-17). “It must be a clear case before a trial judge is justified in
taking these proximate cause issues from the jury.” Cowan Bros., L.L.C. v. Am.
State Bank, 2007 S.D. 131, ¶ 22, 743 N.W.2d 411, 419 (quoting Luther v. City of
Winner, 2004 S.D. 1, ¶ 24, 674 N.W.2d 339, 348). Moreover, “[a] mere surmise that
a party will not prevail at trial is not a sufficient basis to grant summary
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judgment.” Colonial Ins. Co. of California v. Lundquist, 539 N.W.2d 871, 873 (S.D.
1995).
[¶17.] Appellants argue that the evidence, including the opinions of their
experts, created a question of fact on causation. Appellants also point to this
Court’s decision in Van Zee v. Sioux Valley Hosp., 315 N.W.2d 489, 495 (S.D. 1982),
where the Court stated that circumstantial evidence may be sufficient to create an
inference of causation, even though it does not negate the “existence of remote
possibilities that the injury was not caused by the defendant.” TAS argues that
Tjaden’s expert opinions were not reliable under SDCL 19-19-702 because he was
unable to provide an opinion as to the amount of carbon monoxide in the vehicle
when Appellants were present or the rate at which the carbon monoxide may have
dissipated before the fire department arrived. TAS also argues that Dr. Eide was
unable to provide an opinion on the exhaust source that caused the carbon
monoxide exposure. TAS claims the circuit court properly dismissed the claims as a
matter of law on causation because the question of causation is outside the common
experience of a layperson.
[¶18.] In considering the necessity of expert testimony to show causation
between the defect and the injury to the plaintiff in a products-liability case, this
Court has stated:
In particular, a plaintiff must set forth sufficient evidence
establishing a causal connection between the design defect and
the resulting injury. We do not require that plaintiff eliminate
all other possible explanations of causation that the ingenuity of
counsel might suggest. . . . However, unless it is patently
obvious that the accident would not have happened in the
absence of a defect, a plaintiff cannot rely merely on the fact
that an accident occurred. It is not within the common expertise
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of a jury to deduce merely from an accident and injury that a
product was defectively designed.
Burley v. Kytec Innovative Sports Equip., Inc., 2007 S.D. 82, ¶ 28, 737 N.W.2d
397, 407 (citations omitted).
[¶19.] We initially note that this is not a case where Appellants failed to
present any expert opinions on causation. Tjaden’s report and deposition and the
deposition of Dr. Eide were presented as part of the summary judgment record.
TAS argued to the circuit court that Tjaden’s opinions were not reliable but did not
file a formal Daubert motion or a motion to strike any of the expert opinions on
summary judgment. In ruling on the summary judgment motion, the circuit court
stated that “Tjaden isn’t providing additional evidence that’s solid enough.” It is
unclear whether the circuit court was concluding that some of Tjaden’s opinions
were unreliable under Rule 702 or that Tjaden’s opinions did not present sufficient
evidence of causation to survive summary judgment. Moreover, the circuit court
failed to conduct a Daubert analysis as to the relevance or reliability of any of
Tjaden’s opinions under Rule 702.2
2. This Court has stated that “[t]he purpose of a Daubert hearing is to
determine whether the offered ‘expert testimony both rests on a reliable
foundation and is relevant to the task at hand.’” Burley, 2007 S.D. 82, ¶ 25,
737 N.W.2d at 406 (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S.
579, 597, 113 S. Ct. 2786, 2799, 125 L. Ed. 2d 469). Unlike Burley, it is
unnecessary to remand the Daubert issues because Appellants have created
questions of fact even if the challenged opinions are not considered.
We note that Tjaden’s report included a number of conclusions about how the
Appellants may have been exposed to carbon monoxide in the vehicle because
of the faulty exhaust system. He also provided several opinions about the
general nature of carbon monoxide, symptoms associated with acute
exposure, the risks of carbon monoxide exposure in vehicles, and the design of
vehicle exhaust systems to reduce the risk of exposure. TAS is challenging
(continued . . .)
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[¶20.] TAS has not raised any issue, for the purpose of this summary
judgment proceeding, concerning Dr. Eide’s medical opinions. Dr. Eide testified
that he could not provide an opinion whether the vehicle exhaust caused the carbon
monoxide poisoning and acknowledged that the carbon monoxide exposure could
have come from multiple sources. However, Dr. Eide’s opinions and the hospital
records show Appellants were exposed to carbon monoxide and sustained their
injuries from this exposure. The questions remain whether Appellants have
generated questions of fact that the muffler was missing at the time of the sale, and
whether Appellants’ carbon monoxide exposure was caused by the absence of a
muffler.
[¶21.] Here, Appellants presented the fire department records showing that
the muffler on the vehicle was missing on April 1, 2014, and the exhaust ended
under the back seat of the vehicle. Although there is contrary evidence in the
record, viewing the evidence most favorable to Appellants shows that a question of
fact exists whether this condition existed at the time TAS sold the vehicle to
Garrido and Hoof. From the time Garrido and Hoof took the vehicle for a test drive
until April 1, 2014, the vehicle was extremely loud and there was a smell of exhaust
or gasoline. The evidence shows that after the purchase, Appellants rolled the
windows of the vehicle down while driving because of the smell. There is also
evidence that Hoof complained of headaches while riding in the car.
_________________________________________________
(. . . continued)
the former opinions by Tjaden as unreliable. It does not appear that TAS
challenges Tjaden’s latter opinions.
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[¶22.] Further, even assuming Tjaden’s challenged opinions are inadmissible,
the evidence also creates a question of fact whether the condition of the exhaust
system caused Appellants’ carbon monoxide exposure. TAS is not challenging
Tjaden’s opinions that carbon monoxide is colorless and odorless, or that vehicle
exhaust contains carbon monoxide that can have an acute physical impact and can
be deadly to humans. TAS also does not challenge Tjaden’s opinions that vehicle
exhaust systems are designed so that the exhaust is expelled behind the back
wheels away from any openings in the passenger compartment, and that because
the tailpipe ended under the backseat of the subject vehicle it would make it more
likely that carbon monoxide would enter any openings in the passenger
compartment.
[¶23.] On April 1, 2014, Appellants sat in the parked vehicle with the engine
running and windows rolled down for 30 to 45 minutes. Appellants later rolled the
windows up when it started to rain. M.I. first began exhibiting symptoms of carbon
monoxide poisoning after he had been sitting in the vehicle with it running for an
extended period of time. M.I.’s symptoms improved after exiting the vehicle for a
period of time. As soon as the Appellants returned to the car, M.I.’s symptoms
worsened; he experienced a seizure and stopped breathing. All three of the
Appellants were diagnosed with carbon monoxide poisoning and had high levels of
carbon monoxide in their bodies immediately after exiting the vehicle. M.I. also
smelled of exhaust fumes. Shortly thereafter, the fire department discovered that
because of the missing muffler the exhaust system ended near the backseat of the
vehicle where M.I. was seated. M.I. had nearly twice the levels of carbon monoxide
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in his body as compared to Hoof and Garrido, who were both seated in the front
seat. There is no evidence that anyone living in the Appellants’ home or others with
Appellants that day sustained carbon monoxide poisoning.
[¶24.] Despite this evidence, TAS argues that expert testimony was necessary
to show that the levels of carbon monoxide were toxic when Appellants were present
in the vehicle. TAS claims that a jury would only be able to speculate whether the
vehicle exhaust caused the carbon monoxide exposure because the levels of carbon
monoxide inside the vehicle when tested at the hospital were not high enough to
have caused an acute exposure. TAS also points to the evidence that the levels of
carbon monoxide did not increase after the fire department ran the vehicle with the
windows and doors closed for two minutes. On this record, an exact measure of the
carbon monoxide levels in the vehicle at the time of the exposure are not essential to
create a jury question. The medical evidence that Appellants were suffering from
carbon monoxide exposure, the condition of the vehicle exhaust system, and the
timing and circumstances of Appellants’ reporting to the hospital with these
injuries allow a fact finder to conclude that the defective exhaust system was
probably the instrument that caused the exposure. In a context such as this, TAS
has not presented any case suggesting that causation can only be established by
presenting expert testimony that the levels of carbon monoxide in the passenger
compartment were toxic while Appellants were sitting in the vehicle.
[¶25.] TAS cites Macy v. Whirlpool Corp., 613 F. App’x 340, 341-42 (5th Cir.
2015), in support of its claim that expert testimony is needed to show causation in
this case. Macy affirmed summary judgment on plaintiffs’ claims that they
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experienced physical symptoms from exposure to low levels of carbon monoxide
from a recently purchased gas stove. Id. at 341-42, 345. Unlike this case, there was
no medical evidence that plaintiffs’ symptoms were caused by exposure to carbon
monoxide as plaintiffs’ blood levels for carbon monoxide tested within normal
ranges. Id. at 341. Lacking medical evidence, plaintiffs sought to present expert
testimony showing that prolonged exposure to low levels of carbon monoxide could
cause their symptoms, even in the absence of elevated levels of carbon monoxide in
their blood. Id. at 342-45. Macy determined such opinions were unreliable and
granted summary judgment because plaintiffs failed to show their symptoms were
caused by carbon monoxide exposure. Unlike Macy, the evidence here shows that
Appellants were exposed to carbon monoxide from an exhaust and that this
exposure caused their injuries.
[¶26.] TAS also cites Wright v. Willamette Indus., Inc., 91 F.3d 1105, 1106
(8th Cir. 1996), which is also a chronic-exposure case and distinguishable from the
instant case. In Wright, plaintiffs living in the vicinity of a fiberboard-
manufacturing plant sued, claiming the wood fiber emitted from the plant contained
formaldehyde that was causing headaches, sore throats, watery eyes, dizziness, and
shortness of breath. Id. The Eighth Circuit reversed a jury verdict for the
plaintiffs, determining as a matter of law that plaintiffs failed to establish
proximate cause for their injuries. Id. at 1106-07. Applying Arkansas law, the
court held that a plaintiff in a toxic-tort case must prove both general causation
(that the substance at issue is dangerous to humans) and specific causation (that
the plaintiffs were actually exposed to the substance). Id. The court determined
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that plaintiffs presented evidence that wood fibers from the plant were found in
plaintiffs’ homes, sputum, and urine. Id. at 1107. But there was no expert
testimony to show that the wood fibers contained hazardous levels of formaldehyde,
or expert testimony connecting the ingestion of the fibers with their symptoms. Id.
at 1107-08.
[¶27.] In commenting on causation, the Wright court stated,
[w]e do not require a mathematically precise table equating
levels of exposure with levels of harm, but there must be
evidence from which a reasonable person could conclude that a
defendant’s emission has probably caused a particular plaintiff
the kind of harm of which he or she complains before there can
be a recovery.
Id. at 1107. Here, Appellants presented expert testimony that they were exposed
to, and suffering from, carbon monoxide poisoning on April 1, 2014. Taken in the
light most favorable to Appellants, there is sufficient evidence in the record for a
jury to conclude that the defective exhaust system probably caused Appellants’
carbon monoxide exposure. The circuit court therefore erred in granting TAS’s
motion for summary judgment on causation. Because the circuit court did not reach
the liability issues, we remand the liability issues for the circuit court to resolve by
summary judgment and/or trial.
2. Whether the circuit court erred in denying
Appellants’ request for fees incurred by their expert
in preparing for a deposition noticed by TAS.
[¶28.] Appellants argue it was error for the circuit court to deny the motion to
require TAS to pay Dr. Eide for some of the time he spent before and after TAS
noticed his deposition. Following his deposition, Dr. Eide sent a bill to Appellants’
counsel for $2,750. This was in addition to the $375 bill for the actual deposition
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time paid by TAS. The $2,750 bill represented five and one-half hours of work at a
rate of $500 per hour and included time spent both before and after the deposition.
Dr. Eide later separated this bill, charging Appellants $750 for one and one-half
hours of time for communicating with Appellants’ counsel and for “non-deposition
time with legal counsel before and after the deposition.” Dr. Eide billed the
remaining $2,000 to TAS, which TAS refused to pay. Appellants’ counsel then paid
both the $750 bill and the $2,000 bill.
[¶29.] Appellants aver that the $2,000 bill represented time associated with
preparing for the deposition and responding to TAS’s discovery request. TAS
argues it is not responsible for additional expert fees beyond the deposition time
because TAS did not ask Dr. Eide to make special preparations for the deposition.
TAS asserts the deposition consisted only of questions regarding Dr. Eide’s opinions
and his basis for them. TAS also argues this was time spent by Dr. Eide
formulating his opinions on behalf of Appellants as Dr. Eide had not expressed or
begun formulating his opinions until the deposition was noticed.
[¶30.] A circuit court’s discovery orders are reviewed for an abuse of
discretion. Voorhees Cattle Co., LLP v. Dakota Feeding Co., LLC, 2015 S.D. 68, ¶ 8,
868 N.W.2d 399, 404. SDCL 15-6-26(b)(4)(E) provides that:
Unless manifest injustice would result, (i) the court shall require
that the party seeking discovery pay the expert a reasonable fee
for time spent in responding to discovery under subdivisions
(4)(A)(ii) and (4)(B) of this section; and (ii) with respect to
discovery obtained under subdivision (4)(A) (ii) of this section
the court may require, and with respect to discovery obtained
under subdivision (4)(B) of this section the court shall require,
the party seeking discovery to pay the other party a fair portion
of the fees and expenses reasonably incurred by the latter party
in obtaining facts and opinions from the expert.
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[¶31.] The plain language of the statute requires the circuit court to order the
party seeking discovery from an expert to pay a “reasonable” fee for “time spent in
responding to discovery.” But the statute does not further define those terms. In
ruling on Appellants’ motion to determine expert fees, the circuit court stated:
as to the expert witness, I think defense is only liable for the
time spent in the deposition. I think we’re entering in an arena
here where, you know, this case, the dollar amounts are not
huge, but, in any case, you could have phenomenal amounts of
time spent working on it, impossible to discern. I think even,
frankly, sometimes the costs of experts appearing just for the
depositions is fairly astronomical, frankly. But I’m not going to
grant any other payment regarding that expert.
(Emphasis added.)
[¶32.] In an affidavit to the circuit court, Appellants’ counsel submitted a
copy of Dr. Eide’s initial $2,750 bill but not a copy of the $2,000 for which they seek
payment from TAS. Appellants did not present any other evidence showing there
was an agreement between counsel for reimbursement of Dr. Eide’s time or showing
the amount of time that Dr. Eide actually spent “responding to discovery” from TAS.
We agree with the circuit court that it is “impossible to discern,” on this record,
whether the time outside the deposition was spent formulating opinions for the
Appellants or “responding to discovery” of TAS. Therefore, we cannot say the circuit
court abused its discretion by denying the request to have TAS reimburse $2,000
paid by Appellants to Dr. Eide.
Conclusion
[¶33.] The circuit court erred in granting TAS’s motion for summary
judgment on the issue of causation. We reverse and remand for the circuit court to
resolve the outstanding issues on summary judgment and/or at trial as the court
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deems appropriate. We affirm the circuit court’s denial of the request to assess any
additional expert fees to TAS.
[¶34.] GILBERTSON, Chief Justice, and ZINTER and SEVERSON, Justices,
and THEELER, Circuit Court Judge, concur.
[¶35.] THEELER, Circuit Court Judge, sitting for KERN, Justice,
disqualified.
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