Opinion
AANCV106002202S
03-08-2017
Peter Tarini, et al. v. Andrew J. Duffy, et al
UNPUBLISHED OPINION
RULING ON THE DEFENDANTS' MOTION FOR DETERMINATION OF WITNESS FEES (#197)
Barry K. Stevens, J.
Pending before the court is the motion filed by the defendants Yale New Have Hospital and Yale University to determine a reasonable fee for the deposition of the plaintiff's expert witness, Jarrod Kaufman, M.D. Dr. Kaufman is a board-certified surgeon with offices in Brick, New Jersey. This case is a medical malpractice action and the plaintiff, Peter Tarini, has retained Dr. Kaufman to testify that the medical care that he received from the defendants deviated from the applicable standard of care.
After noticing the deposition of Dr. Kaufman, the defendants were advised that his deposition fee would be $4,500 for a half day. Because of the then impending trial date the defendants decided to proceed with the deposition. In the present motion, the defendants contend that Dr. Kaufman's fee, representing $1,125 per hour, is excessive and they request the court to determine a reasonable fee. According to the defendants, a reasonable hourly rate would be $350. In support of this motion, the defendants have submitted labor statistics from the State of New Jersey indicating that " the 2015 annual mean wage for surgeons in the State of New Jersey was $270,790 which equates to $130.19 per hour." Defendants' Brief, p. 2. The plaintiff has filed an objection to the defendants' motion. In support of his objection, the plaintiff has submitted Dr. Kaufman's resume.
Practice Book § 13-4(3) provides in relevant part: " Unless otherwise ordered by the judicial authority for good cause shown, or agreed upon by the parties, the fees and expenses of the expert witness for any such deposition, excluding preparation time, shall be paid by the party or parties taking the deposition. Unless otherwise ordered, the fees and expenses hereunder shall include only (A) reasonable fee for the time for the witness to attend the deposition itself and the witness' travel time to and from the place of deposition . . ."
In Holmes v. Hartford Hospital, 147 Conn.App. 713, 84 A.3d 885, (2014), the Appellate Court considered a motion to determine the reasonableness of expert fees. The court used a multi-factor test to evaluate the reasonableness of the expert's fee: (1) the expert's area of expertise; (2) the education and training acquired by the expert to enable him to render the expert opinion; (3) the prevailing rates of other comparably available experts; (4) the nature, quality and complexity of the medical questions at issue; (5) the fee charged to the party who retained the expert; (6) the fees traditionally charged by the expert on related matters and (7) any other factors likely to assist the court in its evaluation.
In the present case, the parties have not supplied enough information for the court to evaluate all these factors fully. As previously stated, the defendants have provided certain labor statistics, but as the plaintiff indicates, these particular statistics group all surgeons together and there is nothing indicating that the statistics have any relevance to Dr. Kaufman's specialty or level of experience. The plaintiff has provided Dr. Kaufman's resume. The resume indicates that he has broad and extensive surgical, research and writing experience since his 1997 graduation from medical school, but otherwise provides very little assistance in determining a reasonable rate for his services.
The defendants emphasize that a fee of $1,125 per hour would equate to a gross, yearly income of over $2 million. Neither party, however, has presented any information about Dr. Kaufman's actual annual income. His yearly income could be $2 million or more, or it could be much less. Additionally, the court has not received any information about the substance or content of the medical opinions Dr. Kaufman is prepared to render in this case. The court has not received any information about the testimony rates charged by comparable doctors in the market area. The plaintiff has not indicated how much Dr. Kaufman is charging him. The defendants have not provided any information about the rates being charged by their experts.
Similarly, the court has not received any information about Dr. Kaufman's rates for providing medical services, and the court has not received any information about the services the doctor was unable to provide or the number of patients the doctor was unable to see because of the time he spent at the deposition. On one hand, there is nothing prohibiting a doctor from charging fees to testify that exceed his rates for providing medical care. On the other hand, the court may need to scrutinize carefully the reasonableness of testimony fees that exorbitantly exceed a doctor's normal rates for his medical services.
Both parties have directed the court to Superior Court decisions that have considered the reasonableness of fees charged by experts for deposition testimony. These cases provide some general guidance, but very little substantive assistance, because a determination of the reasonableness of an expert's fee involves a fact specific inquiry and must be evaluated on a case by case basis. The plaintiff heavily relies on Judge Cole-Chu's decision in Stimac v. Maletz, Superior Court, judicial district of New London, Docket No. 10 6002944, (Feb. 7, 2014, Cole-Chu, J.), where the court authorized a fee of $1,000 an hour for an orthopedic surgeon; accord Garvin v. Altone's Italian American Restaurant, LLC, Superior Court, judicial district of New London, Docket No. CV 11 6007619, (May 13, 2014, Cole-Chu, J.). In the Stimac case, the expert's actual income averaged about $9,300 a day and over $2 million a year.
Two more recent decisions have provided a review of recent cases on this issue. Cintron v. J& E Investment Company, LLC, Superior Court, judicial district of Hartford, Docket No. 13 6040666 (March 25, 2015, Scholl, J.) [60 Conn.L.Rptr. 59, ]; Stewart v. Spell, Superior Court, judicial district of New Haven, Docket No. 10 6016288 (Jan. 13, 2012, Wilson, J.) . A review of this case law indicates that the fees for surgeons often represent the higher end of the fees authorized for expert testimony and that these fees for surgeons have generally ranged from $500 per hour to $1,000 per hour depending on the facts of the specific case.
Based on the information provided by the parties here (which the court again emphasizes is very limited), the court finds a reasonable rate for Dr. Kaufman's deposition testimony to be $750 an hour or a total fee of $3,000. The court makes this finding relying heavily on the allegations of medical malpractice implicated by the plaintiff's complaint and on Dr. Kaufman's resume.
So ordered.