Opinion
No. CV-04-4020041
July 9, 2007
MEMORANDUM OF DECISION
The defendants, Sylvester Maultsby and Laidlaw Transit, Inc., move for a determination of the reasonableness of the deposition fee schedule of an expert witness disclosed by the plaintiff. The present action arises from a motor vehicle accident that occurred in Norwalk, Connecticut. The plaintiff alleges in her complaint, among other things, that she sustained sprains and strains to her cervical, lumbar and thoracic areas. The defendants seek to depose the plaintiff's expert, Roger H. Kaye, M.D., a neurological surgeon who has an office in Norwalk.
A letter sent by Dr. Kaye to the attorneys for the plaintiff, a copy of which is attached to the present motion, indicates that he charges the amount of $4,500 for up to 4 hours of deposition time ($7,500 in the event it is a videotape deposition), and the amount of $1,000 each hour thereafter. Dr. Kaye does not state in the letter the reason that he charges substantially more for a videotape deposition than a non-videotape deposition, other than what appears to be his choice to charge a greater amount. The letter states that "[a]ll fees must be paid in advance (no less than 30 days) before any time will be scheduled for you." The letter concludes that Dr. Kaye has "been burned so many times in so many different and creative ways that there can be no exceptions."
The motion appeared as a matter ready for argument on the short calendar held on the above date. Plaintiff's counsel neither filed a response to the motion nor appeared at the short calendar. As a result, defense counsel request that the court take the matter on the papers.
The issue before the court is governed by Practice Book § 13-4 pertaining to experts. That rule provides in pertinent part as follows: "Unless manifest injustice would result. . . the judicial authority shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery. . ." Practice Book § 13-4(3)(A) (Emphasis added).
There has been no appellate judicial gloss on the phrase "a reasonable fee" as used in that practice book section. Consequently, trial courts in this state have reviewed federal cases construing Federal Rule of Civil Procedure 26(b)(4)(C), which is a similar rule. "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); Engleman v. Bakhuri, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV-03-0082610 (April 12, 2007, Robinson, J.); Brought v. Batson, Superior Court, judicial district of Danbury, Docket No. 02-0347176 (December 17, 2003, Bellis, J.) (36 Conn. L. Rptr. 189). "[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." Cabana v. Forcier, 200 F.R.D. 9, 15-16 (D.Mass. 2001).
Courts of this state have considered the reasonableness of an expert's fee on a case-by-case basis. See, e.g., Beckett v. Waterbury Hospital, Superior Court, judicial district of Waterbury, Docket No. X01-CV-000159614 (October 23, 2002, Hodgson, J.) (33 Conn. L. Rptr. 356) (Court found the medical surgeon's deposition fee in the amount of $1,000.00 per hour to be unreasonable and held that $300.00 per hour represented a reasonable fee).
The plaintiff has not objected to the motion. Therefore, the plaintiff has not taken the opportunity to provide the court with any information concerning the fees charged by Dr. Kaye for his deposition, such as what he bases his fees on, whether he would be required to cancel patients, how much income he would lose in that event, and the scope and complexity of the expert's testimony. Based on the information before the court, including Dr. Kaye's letter and the nature of the plaintiff's claims disclosed in the pleadings, and the court's general knowledge of expert witness fees of the type at issue, the court finds Dr. Kaye's fee schedule to be excessive. In view of the foregoing, the court concludes that $600.00 per hour represents a reasonable fee for Dr. Kaye's deposition time.