Opinion
No. CV 02 0469142 S
July 13, 2007
MEMORANDUM OF DECISION RE MOTION TO SET REASONABLE FEES
The motion before the court is one to set reasonable expert fees regarding depositions by the plaintiff of the defendant's experts. Plaintiff's counsel was informed that two of the doctors, Wishmer and Shienbaum would charge $3,500 for a three-hour deposition. Another defense expert, Dr. Byeff charges $3,000 for a three-hour deposition.
The case appears to be a fairly complicated one. The plaintiff's decedent died in November 2001 as a result of respiratory failure due to metastic gastric cancer. The claim made against the defendants is that upon admission to the defendants' care they failed to take a direct biopsy of a non-bleeding antral ulcer, failed to identify the cancer as a result of the endoscopic procedure performed in January 2001, failed to recommend additional diagnostic studies, and did not perform the endoscopic procedure in accordance with the appropriate standard of care. The medical difficulty of the case is underlined by a statement in the plaintiff's motion to the effect that . . ."the plaintiff maintains her deceased husband was delayed in his diagnosis of gastric cancer and forced to endure unnecessary surgery thereby increasing his pain and suffering. The nature of the cancer was such that it will be difficult to prove that the earlier diagnosis would have changed the outcome thus the damages which would be collectable are limited and will not likely result in a finding of loss of chance of survivability."
The operative practice book sections which give the court the right to set fees are the following:
Practice Book § 13-4(a)(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."
"(3) Unless manifest injustice would result . . . with respect to discovery obtained under subdivisions (1)(B) of this rule, the judicial authority may 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."
(1)
A preliminary matter should be discussed. The plaintiff blanketly maintains that the hourly rates charged by two of the doctors are excessive. The court, as will be discussed agrees, but neither side mentions preparation time. If the court is being asked to exercise its discretion to substantially reduce the per hour deposition fee it would be inequitable to not award preparation time expenses. For all the court knows the defense experts factored this expense into their present claim for expert fees. On this issue the court relies on the very thorough decision by Judge Bellis in Brought v. Batson, 36 Conn. L. Rptr. 189 (2003) who in turn refers to Rolfe v. New Britain General Hospital, 47 Conn.Sup. 296 (2001) an instructive opinion by Judge Shortall. Nothing in our rule prohibits the award of costs of preparation time and Brought and Rolfe conclude that it is appropriate. Judge Bellis points out that the language Practice Book § 13-4(3) is very similar to Federal Rule of Civil Procedure 26(b)(4)(c) and she goes on to say that "most federal courts interpreting that rule conclude that the party seeking to depose the expert witness must pay for the time the expert spends in preparing for the deposition."
The whole point of Practice Book § 13-4(3) is to compensate the expert for either side for reasonable time spent in responding to discovery requests by the other side in the case. It would be unreasonable and not be a fair reflection of reality to suppose that an expert in a complex medical malpractice case would not review his notes and file in preparation for the deposition. The whole point of providing for deposition practice, which is a subset of discovery, is to prevent ambush and surprise at trial. Of course an expert about to be questioned by opposing counsel would have to review his or her notes and file before testifying at the deposition. Should the expert not prepare for the deposition and therefore run the risk of producing deposition testimony subject to being used for his or her impeachment at trial? The obvious answer is of course not, that being the case a reasonable fee for the deposition process would include preparation time.
However, it must be kept in mind that the plaintiff or defense expert about to be deposed has already spent time examining the records and other relevant information to render the opinion which leads opposing counsel to want to conduct a deposition. Therefore, under the guise of "preparing for the deposition" the expert should not be compensated for work he or she has already performed and been compensated for by the side that retained him or her.
The court will take into account these factors in calculating what it believes is the appropriate cost the plaintiff must pay regarding these depositions.
(2)
A fee approaching $1,200 an hour is simply too high. The question remaining is what is an appropriate fee for the actual deposition testimony of these doctors that the plaintiff should rightfully bear. Judge Bellis points out that there is no appellate authority in our state defining what might be a reasonable fee under P.B. § 13-4(3). In this area the most that can be done is to point out the various factors that should be taken into account. She cites the Federal test under their Rule 26(b)(4)(c) and the case of Fisher-Price, Inc. v. Safety First, Inc., 217 F.R.D. 329, 333 (D.Del., 2003). The federal rule has language very similar to our rule § 13-4(3). Fisher-Price sets forth the factors that should be taken into account. The court will list them: (1) witness's area of expertise; (2) expert's training and education; (3) prevailing rates of other comparably respected available experts; (4) complexity of the discovery responses provided; (5) fee actually charged to party who retained the expert; (6) fees traditionally charged by experts on related matters; (7) other relevant factors. As Fisher-Price notes "ultimately" it is a matter of judicial discretion to set what it concludes is a reasonable amount. As to factor (4) the court has some trouble, in the sense that the real issue is the complexity of the case itself and the subject matter of the opinion which can and often is dictated by the actual discovery responses but is not necessarily so determined. The court will now try to address the particular facts in this case relative to the issue at hand.
(a)
As to all three defense experts the first two Fisher-Price criteria appear to be met. Their testimony would be in their area of expertise and each one of them appears to be highly educated, trained, experienced and thus qualified people. As to factor 3 — the prevailing rates of "comparably respected available experts," the defendant only refers to the fact that the plaintiff's expert who was deposed in Florida required an up-front payment of $3,000 whether the deposition was to last one hour or five hours. In fact that deposition lasted four hours which would work out to an hourly rate of $750 per hour. In any event the defendant prior to that deposition taking place did not ask this or any other court to determine reasonableness. Also nowhere in their objection to the plaintiff's motion do the defendants indicate the usual hourly rates generally and usually charged by their experts or, apart from the reference to what the plaintiff's expert charged, what other similarly qualified experts charge for this type of service or similar services.
As to the fourth factor complexity of the issue at hand, the claim and issues raised seem complex enough as previously discussed. However, there is no elucidation as to how or in what way the opinions these experts are giving is particularly complex at least as compared to expert opinion in any other medical malpractice case, all of which require expert testimony and present a degree of complexity beyond the ken of most lay people, lawyers, and judges. That is, the issue of complexity requires some type of comparative analysis which is not given.
Factor 5 under Fischer-Price is interesting. It refers to the fee actually charged to the party who retained the expert — here defense counsel — apart from what some court might order the other side to pay as being fair and reasonable. Defense counsel has represented and the court certainly accepts the representation by defense counsel that they will have to pay their experts the fee they are demanding.
However, our rule contemplates that a party seeking to depose an opponent's expert may not in all cases be expected to pay the full fee that expert has demanded or received for the discovery procedure from the party that hired him or her. As said by the District Court in Cabana v. Forcier, 200 F.R.D. 9, 15 (D.Mass., 2001) in determining "reasonableness" the "ultimate goal must be to calibrate the balance so that (a party) will not be unduly hampered in his/her efforts to attract competent experts while at the same time, an (inquiring) party will not be unfairly burdened by excessive ransoms which produce windfalls for (a party's) experts." As the court said in a case quoted in Cabana and which applies to plaintiff and defense experts: "while plaintiff (or defendant) may contract with any expert . . . and by agreement, that expert may charge unusually high rates for services, the discovery process will not automatically tax such unreasonable fees upon the defendant (plaintiff)," Bowen v. Monahan, 163 F.R.D. 571, 574 (D.Neb., 1995).
(c) CT Page 12548
It is the court's conclusion that the defense experts should be paid $700 per hour for their depositions with $350 for preparation time. It is the court's understanding and it makes these determinations based on the representation of plaintiff's counsel that he is agreeable to depose these experts after hours so as not to interfere with the expert's scheduling of patients. Also counsel indicated he would go to the defendant expert's offices to minimize travel time and limit "the disruption to the doctors' professional endeavors caused by the deposition process."