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setting a reasonable fee for deposing a neurologist at $400 per hour
Summary of this case from McNeely v. McDonald's Corp.Opinion
No. CV02-0347176 S
December 17, 2003
MEMORANDUM OF DECISION
The matter presently before the court is a motion to set a reasonable expert witness fee, filed by the defendant.
The defendant took the deposition of Dr. Douglas Cohen, the plaintiff's expert, on September 10, 2003. According to the defendant, Dr. Cohen is a neurologist. As evidenced in the excerpt from the deposition transcript attached to the defendant's motion, Dr. Cohen testified that he was an attending neurosurgeon at St. Luke's Roosevelt Hospital. Due to the lateness of the court reporter arranged for by the defendant, the deposition, which was scheduled to commence at 2:00 p.m., began at 2:30 p.m. and concluded at approximately 4:00 p.m.
Prior to the deposition, there was no agreement between the parties with respect to Dr. Cohen's fee for testifying. The day before the deposition, plaintiff's counsel advanced Dr. Cohen a flat fee of $5,000 to prepare for and attend the deposition.
At his deposition, Dr. Cohen testified that he was on a fixed salary at the hospital which was not dependent upon the amount of patients seen by him. He testified that the compensation he receives from his activity as an expert witness goes into a faculty plan from which he receives an annual bonus.
The court was not provided with Dr. Cohen's curriculum vitae which likely would have been assistance to the court in its determination of whether the fee was reasonable, nor was the court provided with information relating to the amount of time spent by Dr. Cohen in preparing for the deposition.
A. Deposition Preparation Time
In order to determine whether an expert witness fee is reasonable pursuant to Practice Book § 13-4(3), this court must first determine whether preparation time for a deposition is a recoverable cost. "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).
Practice Book § 13-4(3) provides: "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; and (2) with respect to discovery obtained under subdivision (1)(B) of this rule the judicial authority may require, and with respect to discovery obtained under subdivision (2) of this rule the judicial authority 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."
Practice Book § 13-4(1)(B) provides: "Unless otherwise ordered by the judicial authority upon motion, a party may take the deposition of any expert witness disclosed pursuant to subdivision (1)(A) of this rule in the manner prescribed in the rules of practice Section 13-26 et seq. governing deposition procedure generally."
Practice Book § 13-4(2) provides: "A party may discover facts known or opinions held by an expert who had been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial only as provided in Section 13-11 or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means."
In Rolfe v. New Britain General Hospital, supra, 47 Conn. Sup. 296, the defendants objected to paying for the time the plaintiffs' medical expert witnesses spent in preparation for their depositions. The defendants argued that the Supreme Court's interpretation of General Statutes § 52-260(f) in M. DeMatteo Construction Co. v. New London, 236 Conn. 710, 674 A.2d 845 (1996), controlled, and advanced the proposition that "preparation costs either for trial or deposition testimony are not taxable to the opposing party under General Statutes § 52-260(f) . . ." Rolfe v. New Britain General Hospital, supra, 41 Conn. Sup. 298. The court went on to discuss and distinguish DeMatteo, in which the court held "a `reasonable fee' for a testifying expert did not include the cost of preparing a report, prior to his testimony, which was admitted into evidence at trial." Id., 301. The court further noted that the issue in DeMatteo was the plaintiffs' request for payment for their expert's preparation of report that was introduced into evidence, which differs from a request for payment for the expert's time to prepare for his testimony at a deposition. Id.
General Statutes § 52-260(f) provides: "When any practitioner of the healing arts, as defined in section 20-1, dentist, registered nurse, advanced practice registered nurse or licensed practical nurse, as defined in section 20-87a, or real estate appraiser gives expert testimony in any action or proceeding, including by means of a deposition, the court shall determine a reasonable fee to be paid to such practitioner of the healing arts, dentist, registered nurse, advanced practice registered nurse, licensed practical nurse or real estate appraiser and taxed as part of the costs in lieu of all other witness fees payable to such practitioner of the healing arts, dentist, registered nurse, advanced practice registered nurse, licensed practical nurse or real estate appraiser."
In deciding whether deposition preparation costs were included under the broad language of § 13-4(3), the court in Rolfe v. New Britain General Hospital 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. In addition, that court looked for guidance to rule 26(b)(4)(C) of the Federal Rules of Civil Procedure, which contains similar language. See Id., 303-07.
Federal Rules of Civil Procedure 26(b)(4)(C) provides: "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."
In analyzing decisions under rule 26(b)(4)(C), the court found that most federal courts interpreting that rule concluded that the party seeking to depose the expert witness must pay for the time the expert spent in preparing for the deposition, under the phrase "time spent in responding to discovery" as found in rule 26(b)(4)(C)(i). Rolfe v. New Britain General Hospital, supra, 41 Conn. Sup. 304. Moreover, the court found that the federal courts which did not require the payment of such fees undercut themselves by stating that "[t]here may be some cases where compensation of an expert from time spent preparing for a deposition is appropriate, such as in a complex case." Id. Finally, the court 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.
In Holland v. Wucik, Superior Court, judicial district of New London, Docket No. 558827 (May 30, 2003, Hurley, J.T.R.) ( 34 Conn. L. Rptr. 686), the defendant objected to paying the fees that the plaintiff's expert incurred for travel, deposition preparation time, and the deposition itself. The expert witness, an accident reconstructionist, charged $75 per hour for deposition preparation time, $150 per hour of deposition, and $300 for six hours of travel. Id. The court concluded that the fees charged were reasonable under § 13-4(3). Id. The court followed the decision in Rolfe v. New Britain General Hospital and held that the language of § 13-4(3) included preparation time for the deposition and noted that "without preparation, the witness would be reviewing documents and exhibits during the deposition, thereby wasting the time of the parties and the attorneys whose fees might be greater the more hours it took to depose the expert." Id.
In Temple v. Bridgeport Hospital, supra, the defendant also claimed that it was not responsible for paying for the plaintiff expert's preparation time, that the amount of the fee was unreasonable, and that it was not responsible for reimbursing the plaintiff for the cost of any part of the deposition that the plaintiff used at trial. Without stating the amount of time at issue or detailing the analysis it used, the court determined that $2800 for the expert's deposition time was reasonable under § 13-4(3). The court held, however, that § 13-4(3) does not permit a party to recover the expense it paid to the expert for the time the expert spent preparing for the deposition. Id. The court disagreed with the decision in the Rolfe v. New Britain General Hospital court, and stated that "[a] better rule, is a rule that requires litigants to pay for their own expert's preparation time, because it is the litigants who are in a better position to control the amount of time that their own experts spend preparing for a discovery deposition . . . If the drafters . . . had intended to require that expert's preparation time be included in the fees that a party seeking discovery must bear they could have done so explicitly." Id.
This court is persuaded by the reasoning in Rolfe v. New Britain General Hospital and holds that an opposing party is responsible for reimbursing an expert witness for the reasonable time spent in preparing for a deposition.
B. Reasonable Fee Under Practice Book § 13-4(3)
In Connecticut, there is no appellate authority that sheds light on what a reasonable expert witness fee is under Practice Book § 13-4(3). The trial courts applying § 13-4(3) have looked to its federal counterpart, rule 26(b)(4)(C) of the Federal Rules of Civil Procedure, for guidance. See Rolfe v. New Britain General Hospital, supra, 47 Conn. Sup. 296. "In determining whether a fee request pursuant to Rule 26(b)(4)(C) is reasonable, [the federal] courts consider [the following] criteria: (1) the 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." Fisher-Price, Inc. v. Safety 1st, Inc., 217 F.R.D. 329, 333 (D.Del. 2003).
What constitutes a reasonable fee "must be decided on a case by case basis." Harvey v. Shultz, No. 99-1217-JTM, 2000 WL 33170885, at *2 (D.Kan. November 16, 2000). "The rationale behind [rule 26(b)(4)(C)] is that it would be unfair to require one party to provide discovery for another party's benefit without reimbursement." Cabana v. Forcier, 200 F.R.D. 9, 15 (D.Mass. 2001). "[The] factors . . . merely serve to guide the court and [t]he ultimate goal must be to calibrate the balance so that a plaintiff will not be unduly hampered in his/her efforts to attract competent experts, while at the same time, an inquiring defendant will not be unfairly burdened by excessive ransoms which produce windfalls for the plaintiff's experts." Id., 15-16.
In Gionfriddo v. Hartford Hospital Real Estate, Superior Court, judicial district of Hartford, Docket No. CV 96 0563347 (September 8, 1998, Rittenband, J.) ( 22 Conn. L. Rptr. 648), the court determined that expert witness fees of $300 per hour of deposition, $150 per hour for deposition preparation and $150 per hour for travel time were reasonable for the time an expert spent in responding to discovery pursuant to § 13-4(3).
In Cornelio v. Stamford Hospital, Superior Court, complex litigation docket at Waterbury, Docket No. X01 CV 98 0166769 (February 21, 2003, Hodgson, J.), the issue was whether a fee of $3500 for each half day of deposition charged by the plaintiff's medical expert was unreasonable. The plaintiff asserted that the fee was reasonable given the doctor's credentials. The court stated that this fee was unreasonable in that the doctor's credentials were the same as those of similarly situated persons in the medical profession who charged $300 per an hour of deposition time and that the doctor should instead receive a comparable fee. Id.
In 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), the defendant's expert witness, a hospital-based salaried doctor, stated at his deposition that he would be charging $1000 per hour of deposition. Deposing counsel did not dispute the charge, proceeded with the deposition, and upon completion, challenged the reasonableness of the fee charged pursuant to § 13-4(3). Id. The court determined that the fee was unreasonable, stating that the doctor was not deprived of income during the deposition and proffered no justification for the fee of $1000 per hour other than it was his choice to charge it. Id. Additionally, the court took into consideration that other medical experts involved in the case charged between $250 to $400 per hour of deposition. The court reduced the fee to $300 per hour. Id.
In its ruling, the court disagreed with the decision in Sandler v. New Haven Chiropractic, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. 265862 (January 9, 1989), which suggested that when a party learns that an expert intends to charge an exorbitant fee that party must immediately obtain a court ruling as to its reasonableness. Id. The court explained that such a rule may result in a delay tactic because counsel could encourage their experts to charge exorbitant fees, which would force opposing counsel to seek a court order, thus delaying or possibly precluding a deposition. Beckett v. Waterbury Hospital, supra, Superior Court, Docket No. X01 CV 00 0159614.
In the present matter, the court recognizes and is sensitive to the fact that plaintiff's counsel advanced to his expert, an out-of state doctor, the flat fee of $5,000. However, the court finds that the flat fee of $5,000 charged by the plaintiff's expert, a hospital-based salaried doctor, is unreasonable in light of the court's knowledge of the prevailing rates of other comparable respected available experts. As such, the court reduces the allowable expert fee to $400 per hour for reasonable deposition preparation time and for the actual deposition time from the scheduled start of 2:00 p.m. until the conclusion at 4:03 p.m.
BELLIS, JUDGE.