Rachel Grillo et al. v. William Cambridge, M.D. et al. (2013)

MEMORANDUM OF DECISION ON MOTION FOR DETERMINATION OF EXPERT WITNESS FEE

The plaintiffs have moved for a court order setting the amount of the hourly fee that they are required to pay the defendants' expert, Andrew Bazos, M.D., for his attendance at his deposition.¹  The motion was argued on July 29, 2013.

FACTS

Without knowing, or even asking for, Dr. Bazos' hourly rate,² the plaintiffs took his deposition on June 10, 2013.   The deposition lasted two hours and fifteen minutes.   During the deposition, Dr. Bazos testified that he charged $550 per hour for reviewing records and $1,000 per hour for his time being deposed.   He testified that the $1,000 hourly rate was calculated to make up for what otherwise have been fees his office would collect from patient visits and emergency calls.   Dr. Bazos billed the plaintiffs' counsel $2,250 for those two hours and fifteen minutes—an hourly rate of $1,000.

DISCUSSION

The basis for the present motion, Practice Book § 13–4(c)(2), provides as follows:  “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's 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.”

The effect of taking an expert witness's deposition without knowing the basis for his or her fee and expenses beforehand and then challenging the witness's fees and/or expense after the deposition seems to this court to be unfair and to invite unnecessary and potentially vexatious litigation over such fees and expenses.

There is nothing in the text of, or commentary on, § 13–4, or in the case law, suggesting that subdivision (2) of 13–4(c) is intended to make motions such as the present one routine.   There is no textual basis, or policy reason, to interpret § 13–4(c)(2) in any way that encourages attorneys or parties to unnecessarily use court resources and cause each other trouble and expense by unreasonably failing “to agree on the fees and expenses due under this subsection.”   This is especially true because, in the absence of state appellate guidance, the Superior Court's favored analytical checklist is the fine but elaborate one set forth in Fisher–Price, Inc. v. Safety 1st, Inc., 217 F.R.D. 329 (D.Del.2003).³  Thorough litigation of the Fisher–Price criteria, particularly the seventh (“any other factor likely to assist the court ․”), could take substantial time, both in court and in preparation, and possibly include testimony.

At least before this court, the first factor to be considered is whether, before the expert's deposition, the parties either (1) stipulated to the witness's fee structure (typically a certain number of dollars per hour or other unit of time) and the nature of the witness's expenses to be charged;  or (2) knew the witness's claimed fee structure and expenses (e.g., how travel and lodging will be charged) and the party taking the deposition unequivocally communicated to the party/attorney who designated the expert a specific objection to the fee structure and/or nature of expenses (e.g., objection to staying in a hotel's “Presidential Suite”).   The § 13–4(c)(2) motion can be made before the deposition, if a party feels the disagreement is so fundamental or the dollars at stake so many.   Alternatively, having reserved objection, the party who wants the deposition may proceed and make the motion after the deposition, knowing the structure of the witness's fee and expense claim that will result unless the court finds the overall result unreasonable.

For the foregoing reasons, the fee for Dr. Bazos' attendance at his deposition is $2,250.

Cole–Chu, J.

FOOTNOTES

FN1. The plaintiffs “move for an order setting the amount of the hourly fee that the defense expert, Andrew Bazos, M.D., can charge for attendance at his deposition.”   Even if this ruling changed the hourly rate the plaintiffs are required to pay Dr. Bazos, this ruling is not really requested to—and could not—affect what Dr. Bazos can charge the defendants for his services, including for any difference between what the plaintiffs are required to pay and what Dr. Bazos chooses to charge the defendants, let alone what he can charge for his attendance at depositions and other court proceedings generally..  FN1. The plaintiffs “move for an order setting the amount of the hourly fee that the defense expert, Andrew Bazos, M.D., can charge for attendance at his deposition.”   Even if this ruling changed the hourly rate the plaintiffs are required to pay Dr. Bazos, this ruling is not really requested to—and could not—affect what Dr. Bazos can charge the defendants for his services, including for any difference between what the plaintiffs are required to pay and what Dr. Bazos chooses to charge the defendants, let alone what he can charge for his attendance at depositions and other court proceedings generally.

FN2. It was revealed at oral argument on July 29, 2013, that plaintiffs' counsel did not inquire about, and was not otherwise informed of, Dr. Bazos' fee until the deposition was well under way.   Plaintiffs' counsel also said, and the court finds, that, even if she had known Dr. Bazos' fee before the deposition, she would have had to take the deposition..  FN2. It was revealed at oral argument on July 29, 2013, that plaintiffs' counsel did not inquire about, and was not otherwise informed of, Dr. Bazos' fee until the deposition was well under way.   Plaintiffs' counsel also said, and the court finds, that, even if she had known Dr. Bazos' fee before the deposition, she would have had to take the deposition.

FN3. “In determining whether a fee request pursuant to Rule 26(b)(4)(C) is reasonable, courts consider seven 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)..  FN3. “In determining whether a fee request pursuant to Rule 26(b)(4)(C) is reasonable, courts consider seven 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).

Cole–Chu, Leeland J., J.