Vernon Eldred et al. v. Midstate Medical Center (2011)

MEMORANDUM OF DECISION

The defendant, Midstate Medical Center, filed a motion requesting the court to set a reasonable expert witness fee in relation to the deposition of the plaintiff's expert, Dr. Weingarten, M.D. who was deposed on December 1, 2010, at the Hahnmann University Hospital in Philadelphia.   Dr. Weingarten, a vascular surgeon is employed and receives his salary from Drexel University College of Medicine.   The defendant, in order to proceed with the deposition, was required to make a prepayment of $3,300 as the “half day” deposition rate.   The defendant Midstate Medical Center request this court to set a reasonable deposition fee in the amount of $250 per hour.

Discussion

Practice Book § 13–4(c)(2) provides as follows:

(2) 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) a reasonable fee for the time of the witness to attend the deposition itself and the witness' travel time to and from the place of deposition;  and (B) the reasonable expenses actually incurred for travel to and from the place of deposition and lodging, if necessary.   If the parties are unable to agree on the fees and expenses due under this subsection, the amount shall be set by the judicial authority, upon motion.

There is no appellate authority in Connecticut that sheds light on what a reasonable expert witness fee is under Practice Book § 13–4(3).   The trial courts applying Practice Book § 13–4(3) have looked to its federal counterpart, rule 26(b)(4)(C) of the Federal Rules of Civil Procedure, for guidance.   See Rolfe v. New Britain General Hospital, 47 Conn.Sup. 296, 790 A.2d 1194 (2001).  “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.”  (Citation omitted;  internal quotation marks omitted.)   Fisher–Price, Inc. v. Safety 1st, Inc., 217 F.R.D. 329, 333 (D.Del.2003).

What constitutes a reasonable fee “must be decided on a case by case basis.”   Harvey v. Shultz, Docket No. 99–1217–JTM, 2000 WL 33170885, p. 2 (D.Kan. November 16, 2000).  “The rationale behind [rule 26(b)(4)(C) ] is that it would be unfair to require one party to provide discovery for another party's benefit without reimbursement.”  Cabana v. Forcier, 200 F.R.D. 9, 15 (D.Mass.2001).  “[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.”  (Internal quotation marks omitted.)  Id., at 15–16.

After having considered the respective parties' memorandum of law and after having heard their oral arguments the court finds that a reasonable fee for deposition of Dr. Weingarten is at a rate of $450 per hour, that fee excludes preparation time pursuant to P.B. § 13–4(c)(2).

BY THE COURT

Denise D. Markle, Judge

Markle, Denise D., J.