Summary
concluding that it was reasonable for a plaintiff's expert to charge a higher rate for deposition preparation time than for time spent reviewing records
Summary of this case from Smith v. Bradley Pizza, Inc.Opinion
Case No. 98-2280-JWL.
March 12, 2001.
MEMORANDUM ORDER
This medical malpractice action arises out of defendant's care and treatment of plaintiff during plaintiff's hospitalization for complications associated with her pregnancy. This matter is presently before the court on plaintiff's motion to compel payment of deposition preparation time and deposition transcript review time spent by plaintiff's experts deposed by defendant (doc. #169). Specifically, plaintiff moves the court to compel defendant to pay for sixteen hours of deposition preparation time for Dr. Margulies; three hours of deposition preparation time for Dr. Ayres; ten hours of deposition preparation time for Dr. Rush; and two hours of deposition preparation time for Dr. Johnstone. Plaintiff also moves to compel defendant to pay for the time that these expert witnesses spent reviewing and correcting their deposition transcripts pursuant to Fed.R.Civ.P. 30(e). As set forth in more detail below, the motion is granted in part and denied in part.
In her motion, plaintiff states that "no data is presently available for Rule 30(e) deposition review time." In other words, plaintiff provides no information with respect to the amount of time that each witness spent reviewing and correcting his deposition transcript. Plaintiff did not file a reply brief and has never supplemented her motion with the number of hours billed by each witness for deposition review. Thus, the court deems this argument abandoned by plaintiff.
Payment of expert witness fees in this context is governed by Federal Rule of Civil Procedure 26(b)(4)(C), which provides in relevant part as follows:
Unless manifest injustice would result, (i) the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent responding to discovery. . . .
In his response, defendant does not object to paying for Dr. Ayres' preparation time or Dr. Rush's preparation time. Defendant does object, however, to paying the particular hourly rate charged by Dr. Rush, the two hours charged by Dr. Johnstone, and the sixteen hours charged by Dr. Margulies. The court begins with Dr. Rush's hourly rate. Dr. Rush apparently charges a different rate for deposition preparation time ($200.00) than he does for time spent reviewing records ($100.00). According to defendant, it is unreasonable for Dr. Rush to charge two different rates for these activities. Defendant suggests that Dr. Rush utilizes a higher rate for preparation time because Dr. Rush knows that defendant will be required to pay the higher rate and that he utilizes a lower rate for record review time because he knows that plaintiff is responsible for compensating him for that time. There is no merit to defendant's suggestion. In the deposition excerpt provided by defendant, Dr. Rush makes no mention of which party would be paying which fees. He simply testified that he generally charges more for deposition preparation and trial preparation than he does for reviewing records. While defendant criticizes plaintiff for not pointing to any authority supporting Dr. Rush's practice, defendant points to no authority suggesting that Dr. Rush's practice is unreasonable. Defendant does not challenge the reasonableness of Dr. Rush's $200.00 hourly rate on any other grounds. Thus, defendant shall pay Dr. Rush's hourly rate of $200.00.
Defendant never argues that the time an expert witness spends preparing for a deposition does not constitute time spent "responding to discovery" for purposes of Federal Rule of Civil Procedure 26(b)(4)(C). In other words, defendant assumes that he is required to pay for preparation time. Thus, the court does not decide that issue here.
Defendant's only argument with respect to Dr. Johnstone is that Dr. Johnstone testified in his deposition that he would not charge defense counsel for his preparation time. The relevant excerpt is as follows:
Defendant's counsel: I'll pay for — I'm going to be paying for the two hours for preparation —
Dr. Johnstone: I won't charge for that, that's fine. I will charge you for the deposition.
Defendant's counsel: Well, I'm just telling you what we're going to pay for, and then we'll let the Court deal with the rest of it. I'll pay for the preparation, which is two hours, and the deposition, which was from 11:30 to 3:00.
Clearly, the situation was left with defendant reiterating that he would pay for deposition preparation time. In other words, while Dr. Johnstone may have volunteered to absolve defendant of that obligation, defendant essentially rejected Dr. Johnstone's offer. Defendant cannot now complain that Dr. Johnstone sent him a bill for preparation time. Because defendant does not challenge Dr. Johnstone's bill on any other grounds, defendant shall pay for Dr. Johnstone's preparation time.
With respect to Dr. Margulies, defendant maintains that the 16 hours Dr. Margulies spent preparing for his deposition is unreasonable in light of the fact that Dr. Margulies spent only 16 hours in reaching his opinions and preparing his expert report. Moreover, Dr. Margulies testified that his deposition preparation consisted of re-reviewing the materials that he reviewed in connection with rendering his opinions and preparing his report. According to defendant, it is "completely unreasonable" that Dr. Margulies spent the same amount of time preparing for his deposition that he spent establishing his opinions and preparing his report. In support of his argument, defendant highlights that Dr. Rush spent only 10 hours preparing for his deposition as compared to 40 hours spent in reaching his opinions and preparing his expert report. Similarly, Dr. Ayres spent only three hours preparing for his deposition as compared to 10 to 12 hours spent preparing his opinions and his report. Consistent with the ratio of time spent by Drs. Rush and Ayres, defendant requests the court to reduce Dr. Margulies time spent preparing for his deposition to four to six hours. The court agrees that it is unreasonable for Dr. Margulies to have spent 16 hours preparing for his deposition when he spent a total of 16 hours preparing his opinions and his report. In the absence of any alternative presented by plaintiff, the court will reduce Dr. Margulies time spent preparing for his deposition to six hours. Thus, defendant shall pay Dr. Margulies for six hours of time spent in connection with preparing for his deposition.
As stated earlier, plaintiff did not file a reply brief.
IT IS THEREFORE ORDERED BY THE COURT THAT plaintiff's motion to compel payment of deposition preparation time and deposition transcript review time spent by plaintiff's experts deposed by defendant (doc. #169) is granted in part and denied in part.
IT IS SO ORDERED.