Opinion
No. CV 04 0085900 S
April 5, 2007.
MEMORANDUM OF DECISION RE MOTION #114 DETERMINATION OF EXPERT WITNESS FEES
By way of a pleading dated August 23, 2006, the plaintiff disclosed an expert witness, Ms. Carlton E. Helming, CPA, CIRA, CFE, CVA of Helming Company, P.C. The disclosure provides in pertinent part that Mr. Helming is "a Forensics Account who is expected to testify regarding his analysis of the Plaintiff's loss wages, bonuses, stock options and other incentives the Plaintiff has lost as a result of the incident which is the subject of this action."
On January 26, 2007, the defendant moved for a determination of Mr. Helming's requested fees. The defendant specifically moved that this court determine:
1. That an hourly rate of $350.00/hour is an exorbitant rate for a certified public accountant to charge for expert witness fees;
2. That the Defendant has no obligation to pay the expert witness retained and disclosed by the Plaintiff for that expert's deposition preparation time; especially four (4) hours as requested, when. he has yet to prepare a written opinion;
The Court was informed at oral argument that the written report has been completed by the witness.
3. That the Defendant has no obligation to pre-pay the expert witness for the expert's deposition time; especially when the amount of time has not been determined and the Defendant guarantees post-deposition payment;
4. That the Defendant has no obligation to pay the expert witness for four (4) hours of deposition time, irrespective of how short the deposition actually is;
5. That the Defendant has no obligation to pay the expert witness for complete copies of the expert's file where the expert has been commanded to produce his original at his deposition;
6. That if and when the Defendant requests copies from the expert of documents produced at the expert's deposition, a rate of $0.25 per page is exorbitant and an unreasonable rate to be charged for replication of those documents in light of the typical and standard rate of $0.10 per copy.
Practice Book § 13-4(3) provides that: "Unless manifest injustice would result, (A) the judicial authority shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under subdivisions (1)(B) and (2) of this rule . . ." No Connecticut appellate authority gives guidance as to how a court should determine whether such a fee is reasonable. Rose v. Jolly, 48 Conn.Sup. 606, 607, 854 A.2d 824 (2004) ( 37 Conn. L. Rptr. 495). Connecticut courts have looked for guidance to the federal courts' interpretations of Rule 26(b)(4)(C) of the Federal Rules of Civil Procedure, the federal counterpart to Practice Book § 13-4(3). Id. "In determining whether a fee request pursuant to Rule 26(b)(4)(C) is reasonable, [the federal] courts consider [the following] criteria: (1) [T]he witness's area of expertise; (2) the education and training required to provide the expert insight that is sought; (3) the prevailing rates of other comparably respected available experts; (4) the nature, quality, and complexity of the discovery responses provided; (5) the fee actually charged to the party who retained the expert; (6) fees traditionally charged by the expert on related matters; and (7) any other factor likely to assist the court in balancing the interest implicated by Rule 26 . . . Ultimately, however, it is in the court's discretion to set an amount that it deems reasonable." (Internal quotation marks omitted.) Id. A party may file a motion for the court to determine a reasonable fee for the expert witness' testimony. See Beckett v. Waterbury Hospital, Superior Court, Complex Litigation Docket at Waterbury, Docket No. X01 CV 00 0159614 (October 23, 2002, Hodgson, J.) ( 33 Conn. L. Rptr. 356).
As to the Hourly Rate
The expert is seeking an hourly rate of $350.00. Neither the plaintiff, nor the defendant has presented any evidence as to the prevailing rate of other comparably respected available experts. The plaintiff has not presented this court with any specific information regarding how the subject expert set the $350.00 per hour rate. Additionally the plaintiff has not submitted any evidence concerning the nature, quality, and complexity of the expert's testimony.
The court does not have any evidence before it regarding the hourly rate the plaintiff's expert normally charges his clients or how many clients he would normally see during the time set for his deposition.
Lastly, although objecting to the requested fee, the defendant has not provided the Court with any useful information as to fees that similar providers are paid under similar circumstances.
The parties are asking this court to intervene and determine whether a proposed expert witness fee is reasonable, but provide scant information for the court to make such a decision. In order for the court to determine whether the rate is reasonable it would have liked to have at least some of the data of the type that was discussed above. However, based on the information that it does have, this court finds that the requested hourly rate of three hundred fifty dollars ($350.00) per hour is unreasonable and sets the hourly rate of two hundred dollars ($200.00) per hour.
As to the Preparation Time
"There is no Connecticut appellate authority on point as to whether a party [deposing] an opposing party's expert is responsible for paying the expert for the time spent preparing for the deposition." Temple v. Bridgeport Hospital, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 99 0366964 (May 3, 2002, Gallagher, J.). Moreover, a split of authority exists in the trial courts as to whether preparation time can be included in a reasonable fee pursuant to § 13-4(3). Compare Temple v. Bridgeport Hospital, supra, Superior Court, Docket No. CV 99 0366964, with Rolfe v. New Britain General Hospital, 47 Conn.Sup. 296, 790 A.2d 1194 (2001). See also Flores v. Jenison, Superior Court, judicial district of New Haven, Docket No. CV 01 0278648 (June 23, 2004, Frazzini, J.) ( 37 Conn. L. Rptr. 328, 331 n. 2).
In Rolfe the defendants objected to paying for the time the plaintiffs' medical expert witnesses spent in preparation for their depositions. In deciding whether deposition preparation costs were included under the broad language of § 13-4(3), the court looked to the history and purpose of this section, and concluded that if "the judges wanted to limit payment to only the time spent actually in testifying at a deposition, they could have done so, and they did not." Id., 303-04. The court looked for guidance to rule 26(b)(4)(C) of the Federal Rules of Civil Procedure, which contains similar language. It ultimately held that "[w]hen the language of Practice Book § 13-4 is considered, as well as its history and apparent purposes, it would be an unreasonably narrow construction to limit its terms to payment only for time spent at the deposition and not in preparation for it. As the [federal courts have stated] . . .'[t]ime spent preparing for a deposition is, literally speaking, time spent in responding to discovery.'" Id., 307.
Federal Rules of Civil Procedure Section 26(b)(4)(C) 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 this subdivision; and (ii) with respect to discovery obtained under subdivision (b)(4)(B) of this rule 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.
This Court agrees with the holding in Rolfe and therefore will order that the witness be paid for his preparation time; however, the plaintiff does not explain why the witness will need four (4) hours to prepare for a deposition, when the primary subject of the deposition will be a written opinion that was written by the deponent. In light of this fact the Court limits said preparation time to up to two (2) hours.
As to Pre-payment
The defendant shall tender payment for the expert's fees for the deposition within two weeks of the deposition taking place.
As to the Defendant Paying a Minimum of Four Hours
With the exception of the preparation time discussed hereinbefore, the court limits the expert's fees to the actual time that the deponent testifies.
As to Payment for Complete Copies of the Expert's File
The defendant will determine which portions of the file it wants to have copied and will be charged only for the copies that it requests.
As to the Per Page Rate
The requested copying fee of twenty-five cents ($0.25) per page is reasonable and is therefore granted.