IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

CHARLES MORROW, and

FLORA MORROW,

Plaintiffs,

v. CASE NO. 5:10-cv-000137-RS-GRJ

GREENSOUTH EQUIPMENT, INC., 

d/b/a GREENSOUTH 

EQUIPMENT-TALLAHASSEE, 

DEERE & COMPANY, d/b/a JOHN 

DEERE, and JOHN DOE 

COMPANY/MANUFACTURER,

Defendants.

_____________________________/

ORDER

Pending before the Court is Plaintiffs’ Amended Motion And Memorandum In

Support To Compel And For Sanctions For Failure To Answer Deposition Question,

And Alternatively Motion To Strike Testimony (Doc. 16). Defendant Deere & Company

(“Deere”) has filed a memorandum in opposition (Doc. 20) and, therefore, the motion is

ripe for consideration. For the reasons discussed below Plaintiff’s Amended Motion to

Compel is due to be DENIED.

I. Introduction

Plaintiffs request the Court to enter an order compelling Kirk Ney – Defendant’s

expert and a current Division Engineer with Deere – to disclose information concerning

his compensation as a full time salaried employee of Deere. Alternatively, Plaintiffs

request the Court to strike Ney’s deposition testimony and disallow the testimony from

being used at trial. 
The issue arose during the November 4, 2010 deposition of Mr. Ney in

Davenport, Iowa. (Doc. 20 Ex. A. p. 1.) During the deposition Plaintiffs’ counsel asked

Mr. Ney: “How much are you paid on an annual basis?” Id. at p. 4. Deere’s counsel

objected to the question and after consultation advised that Ney would not provide

information as to his salary. Id. Deere’s counsel, however, advised that Ney was

“willing to talk specifically about any compensation that he’s received in connection with

this case specifically or any incentives that he receives in connection with this case

specifically.” Id. at pp. 4-5. 

II. Discussion

The starting point for the analysis is the applicable rule. Fed. R. Civ. P. 26(a)(2)

requires a party to disclose to other parties the identity of any witnesses it may use at

trial to present evidence under Fed. R. Evid. 702, 703, or 705. Rule 26(a)(2)(B) also

provides that disclosure must be accompanied by a written report prepared and signed

by the witness if the witness has been retained or specially employed to provide expert

testimony or is someone whose duties as a party’s employee regularly involve giving

expert testimony. The expert’s written report must include, among other things, “a

statement of the compensation to be paid for the study and testimony in the case.” 

The issue before the Court is whether the requirement that a party disclose the

compensation paid to an expert includes the obligation to disclose the annual salary

and employee compensation of the expert witness where the expert is also an

employee of the party on whose behalf the expert is testifying. The answer is no – a

party is not required to disclose the annual employee compensation of an employee2
expert where, as here, the compensation is not tied to nor dependent upon the opinions

offered. There is a simple and pragmatic reason for this. The reason a party is

obligated under Rule 26(a)(2)(B) to disclose “the compensation to be paid for the study

and testimony” of the expert is to allow the opposing party to demonstrate and explore

the bias of the expert. For example, if the expert was paid an hourly rate well above the

prevailing rate for an expert a party would be able to argue to the jury that the

compensation should be taken into account in assessing the credibility of the expert. 

On the other hand, where the expert is a full time salaried employee of the party

offering the opinion of the expert – like Mr. Ney – the amount of the expert-employee’s

salary - as opposed to the mere fact the expert is an employee – would make no

difference regarding bias so long as the salary and benefits are not tied in any way to

the opinions offered by the employee-expert. Porter v. Hamilton Beach/Proctor Silex,

Inc., No. 01-2970-MAV, 2003 WL 22385679, at *1 (W.D. Tenn. Aug. 27,

2003)(Plaintiff’s motion to compel denied where employee-expert refused to answer

deposition question requiring expert to disclose current annual salary and the value of

expert’s 401(k) plan.) 

In Ney’s written report dated September 29, 2010 – which was served on

October 15, 2010 before Mr. Ney’s deposition – Mr. Ney expressly disclosed that he is

a salaried full time employee of Deere and is not receiving separately any hourly fees

for his opinions. Doc. 16, Ex. B, p. 6. In addition, during the deposition Mr. Ney

specifically offered to provide testimony as to “compensation that he’s received in

connection with this case specifically or any incentives that he receives in connection

with this case specifically.” Doc. 20., Ex. A, pp. 4-5. Thus, any bias Mr. Ney may have

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because he serves as an employee and expert can be explored adequately by

Plaintiffs’ counsel on cross-examination without the need to know the annual salary of

Mr. Ney. The jury can be fully advised that Mr. Ney has an interest in the outcome of

the case because he is a full time salaried employee and not an independent expert.

The amount of Mr. Ney’s annual salary, however, is of no consequence and is not

discoverable because the information would not tend to demonstrate bias. 

 Accordingly, because Mr. Ney is not required to disclose his annual salary,

Plaintiffs’ motion to compel Mr. Ney to answer this question at deposition and Plaintiff’s

alternative request to strike Mr. Ney’s testimony for failure to disclose the amount of his

annual salary are due to be denied.1

Lastly, although Plaintiffs’ argument in support of their motion to compel was thin

the Court, nonetheless, concludes that Defendant’s request pursuant to Rule

37(a)(5)(B) for an award of reasonable expenses, including attorney’s fees, incurred in

opposing Plaintiffs’ Motion to Compel is due be denied. While Rule 37(a)(5)(B) provides

that if a motion to compel is denied the Court must require the moving party to pay the

reasonable expenses in opposing the motion, including attorney’s fees, the Court is not

required to do so where the motion “was substantially justified” or “other circumstances

make an award of expenses unjust.” The Court concludes that the issue regarding the

Plaintiffs’ request that this Court strike Ney’s deposition testimony and disallow its use at trial

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also is not well-founded. Fed. R. Civ. P. 37(b)(2)(A)(iii) permits a court to strike a pleading in whole or in

part if a party or witness fails to obey a court order to provide or permit discovery. Because the Court has

not entered an order compelling Deere to provide the information Plaintiffs were not entitled to this relief

even if they were successful on their motion to compel. Plaintiffs also request a limited continuance of

the discovery deadline in this case, which is unnecessary since Ney provided all the required information

as to his compensation in his expert report

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limits on discovery of the compensation of an employee-expert is somewhat narrow and

unique and, therefore, because of the unique circumstances surrounding this issue the

award of expenses in this case would be unjust.

Accordingly, it is hereby ORDERED:

(1) Plaintiffs’ Amended Motion And Memorandum In Support To Compel And

For Sanctions For Failure To Answer Deposition Question, And

Alternatively Motion To Strike Testimony (Doc. 16 ) is DENIED. 

(2) Defendant’s request for attorney’s fees is DENIED.

(3) The Clerk is also directed to terminate as a pending motion Plaintiff’s

Motion And Memorandum In Support To Compel And For Sanctions For

Failure To Answer Deposition Question, And Alternatively Motion To

Strike Testimony (Doc. 15) because it is moot.

DONE AND ORDERED at Gainesville, Florida this 7 day of December 2010. 

th

s/Gary R. Jones

GARY R. JONES

United States Magistrate Judge

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