Opinion
No. 5000054.
November 17, 2006.
MEMORANDUM OF DECISION RE MOTION FOR DETERMINATION OF REASONABLE EXPERT DEPOSITION FEE #155
The defendant, Thomas Family Restaurants Montville, LLC, moved for an order setting a reasonable deposition fee for the plaintiff's expert, Norman R. Kaplan, M.D., an orthopedic surgeon. The defendant argues that the witness' requested fee of $1,500 is unreasonably high. The deposition was scheduled for October 17, 2006 at 4:30 p.m., but has been postponed until a fee can be agreed upon.
Practice Book § 13-4(3) provides as follows: "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). Connecticut Superior Courts have found fees for expert medical witnesses to be unreasonable in some circumstances. Id. (finding unreasonable a fee of $1,000 per hour for a surgeon employed by a hospital); Guarino v. Huttler, Superior Court, judicial district of New Haven, Docket No. CV 01 456624 (June 30, 2004, Devlin, J.) ( 37 Conn. L. Rptr. 359) (finding unreasonable a fee of $1,000 per hour for an expert in obstetrics and gynecology who practices in Miami, Florida); Brought v. Batson, Superior Court, judicial district of Danbury, Docket No. CV 02 0347176 (December 17, 2003, Bellis, J.) ( 36 Conn. L. Rptr. 189) (finding unreasonable a flat fee of $5,000 for the entire deposition for a neurologist); Rose v. Jolly, supra, 48 Conn.Sup. 606 (finding unreasonable a fee of $2,500 for the first two hours and $500 per fifteen-minute segments after the first two hours for an orthopedic surgeon). Superior Courts have set reasonable fees for expert medical witnesses. Beckett v. Waterbury Hospital, supra, 33 Conn. L. Rptr. 356 (setting a reasonable fee for deposing a hospital surgeon at $300 per hour); Rose v. Jolly, supra, 48 Conn.Sup. 606 (setting a reasonable fee for deposing an orthopedic surgeon at $400 per hour); Brought v. Batson, supra, 36 Conn. L. Rptr. 189 (setting a reasonable fee for deposing a neurologist at $400 per hour); Guarino v. Huttler, supra, 37 Conn. L. Rptr. 359 (setting a reasonable fee for deposing an expert in obstetrics and gynecology at $700 per hour).
The defendant argues that a fee of $1,500 per hour is unreasonably high. The defendant suggests that a reasonable fee should lie within the range of $300 to $600 per hour. The plaintiff argues the requested fee is reasonable given the witness' area of expertise, education and training. The witness based his fee on the amount of income he would have otherwise generated, according to the plaintiff. Finally, the plaintiff argues that the witness is acting fairly because he intends to charge the plaintiff more than $1,500 per hour for his testimony at trial.
The plaintiff has not presented this court with specific information regarding how the witness set the $1,500 per hour fee. The record is devoid of information as to how much the witness is charging the plaintiff for his testimony. The court also has no evidence before it regarding the hourly rate the witness charges to patients and how many patients the witness would normally see during the time set for the deposition. The plaintiff has not submitted evidence regarding the witness' level of education and experience or why such a level of expertise is required. This court therefore determines that the fee of $1,500 is unreasonable. The reasonable fee to be paid to the witness for his deposition testimony is $500 per hour.