Cordy v. The Sherwin-Williams Co.

156 F.R.D. 575 (D N.J. 1994)

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Nature of the Case

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Facts

Cordy (P) sued for damages for massive injuries he suffered while riding his bicycle over a railroad track crossing in Lindenwold, New Jersey, on August 30, 1991. P alleges that defendant Sherwin-Williams Company owns the crossing and is liable to him for damages. D moved for an Order compelling Ps counsel to produce the bicycle for examination and testing by their expert, James Marley Green. P moved for an Order barring D from using Green as their expert, and further to disqualify the law firm of Marshall, Dennehey, Warner, Coleman & Goggin, from further representing D in this case. P contends that he had first retained Green to work on his behalf and that Green changed sides in the middle of this litigation. Green is the principal of Resource Engineering, Inc. He is a forensic engineer who specializes in, among other things, accidents involving bicycles. It is likely that he has sufficient training, education, and knowledge to qualify as an expert witness in this case. P contacted James Green in May of 1993, for the purpose of consulting him in his professional capacity regarding this case. Green prepared and submitted a retainer agreement. A check, payable to Resource Engineering, was forwarded in the amount of $3,000, to Resource on May 24, 1993. It was cashed. After investigation, Resource forwarded Brown & Connery a bill dated June 28, 1993, for 27 hours of work done on behalf of Plaintiff in investigating this claim. The invoice shows an outstanding balance due of $2,094.23. P complained about the bill in that there was no report. Green never rendered a written report to P. Green then invoked the 30-day resignation provision of the retainer agreement and returned the $3,000, retainer. P claims Green indicated that the accident was caused by the railroad track and not the bicycle. Green was contacted by D and revealed that he had been 'consulted' by P. P first learned on November 24, 1993, that Dl had retained Green. P immediately objected. The bills to P were about $14,500.00. Green estimated that the total cost 'for the engineering necessary to define the causal factors of the subject accident' on behalf of D was $104,000.00. Green rendered a 'preliminary Professional Engineering Opinion' to the effect that the accident was caused by a defect in the bicycle, not by the railroad crossing.