Eric Klein et al. v. Norwalk Hospital (2012)

MEMORANDUM OF DECISION RE MOTION TO COMPEL PAYMENT OF EXPERT FEE # 285

The plaintiffs have filed a motion to compel the defendant to pay the fees of Mr. Abramson, an accountant who was deposed by the defendant.   The defendant filed an objection to the motion to compel dated May 29, 2012.

The plaintiffs contend that the defendant is responsible for payment of the bill submitted to them for the deposition time and the time Mr. Abramson spent gathering documents in response to the requests for document production for the deposition.   Mr. Abramson has been disclosed as an expert for the plaintiff, Dr. Eric Klein.

There is no question that Mr. Abramson did a search and gathering of documents requested by counsel for his deposition.   The plaintiffs contend that in accordance with Practice Book § 13–4(3) the party seeking discovery pay the expert a reasonable fee.   The defendant contends that it is not obligated to pay the fees as submitted and argues that contrary to the plaintiffs' assertion, the Practice Book does not provide for payment of preparation time to collect the documents, that the documents were produced in accordance with the order of Judge Mintz and the plaintiff's request is untimely.

DISCUSSION

Practice Book § 13–4c(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) 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 ․” The Practice Book clearly provides for the payment of expert fees during the course of the deposition or for the time to travel but excludes payment for time spent in preparing for testimony or in this instance in searching for documentation in support of the expert opinion.   While the defendant's position concerning the split of authority was correct a number of years ago, it is not the applicable law today.   The prior language of the Practice Book was interpreted by the court in such a way that there was a split of authority as to whether the preparation time would be compensable.   Flores v. Jenison, Superior Court, judicial district of New Haven at Meriden, Docket Number CV 01 0278648 (June 23, Frazzini, J.) (37 Conn. L. Rptr. 328) n.2. However, the Practice Book now clearly excludes such preparation time as mandatory compensation.

In viewing the plaintiffs' motion to compel the court has noted Exhibit A attached which is a document dated May 24, 2012 from Abramson and Company LLC to counsel for the plaintiff.   A review of the documentation does not provide a sufficient basis for this court to award any fees even without considering the preparation time as noted above.   The one-page document for payment to counsel for the plaintiffs are woefully deficient.   Other than the invoice date there are no specific dates of service in the bill.   It does not breakdown the supposed tasks of Mr. Abramson and instead gives one description for all of the services that “Accounting Services:  Time spent in Deposition, and responding to requests directly for discovery.”   The invoice then lists that these multiple tasks took 10 hours at a rate of $350.00 per hour.   Ignoring the requests for the preparation time and the failure to adequately distinguish the time for preparation or review and the actual deposition time, the documentation provided for payment of fees does not provide sufficient information to justify payment of expert fees.   In order to determine if the fee is reasonable the court is guided by other courts in setting reasonable fees.   Bernard v. Leon, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket Number CV 020192329 (March 6, 2006, Dooley, J.) (40 Conn. L. Rptr. 816).   The court has been guided by the following criteria in reviewing the substantive request for payment of Mr. Abramson's expert fees:  (1) Mr. Abramson's area of expertise;  (2) his education and experience;  (3) the nature and complexity of the issues;  (4) fees charged to the file for review;  (5) general fee for testimony (6) actual length of time required for the testimony and (7) prevailing rates of similar experts.   McNeely v. McDonald's Corp., Superior Court, judicial district New London at New London, Docket Number 5000054 (November 17, 2006, Hurley, J.T.R.) (42 Conn. L. Rptr. 372) The one-page bill that is an exhibit attached to the motion does not aid in any inquiry as to the reasonableness of the fees.   There is no breakdown for the work done to prepare for the deposition.   There is no description of the deposition time, the time for travel to attend the deposition or tasks associated.   It is impossible to determine what time is allotted to the actual deposition attendance from the invoice.   The final designation on the invoice includes services for staff which under any scenario is not compensable.

Even if this court was to find that the plaintiffs are entitled to compensation, it is impossible to order any compensation due to the lack of documentation that the number of hours would be reasonable and the rate charged is a reasonable amount for this accountant.   First, the plaintiffs have not indicated how many hours he spent in the deposition to comply with the parameters of the Practice Book. The plaintiffs have provided no background as to the experience and education of Abramson which would help to evaluate the next area, that is, what is a reasonable amount given the length of experience coupled with education, nature and complexity of the matter and considering the prevailing rates for an expert such as Mr. Abramson.   Even if all of the hours satisfy the Practice Book, there is no basis for this court to find that a rate of $350.00 per hour is reasonable.

Because of the total lack of background information and the specific work contributed by Mr. Abramason the motion to compel the defendant to pay expert fees of Mr. Abramson is Denied.

THE COURT

Brazzel–Massaro, J.

Brazzel–Massaro, Barbara, J.