Lisa Evarts et al. v. Ann C. Ghiroli, Individually and Ann Ghiroli, Executrix of the Estate of Rose Calabrese (2013)

MEMORANDUM OF DECISION RE MOTION TO SET REASONABLENESS OF EXPERT WITNESS FEES (# 131)

STATEMENT OF CASE

The defendant, Ann Ghiroli in this case pursuant to Practice Book § 13–4(c)(2)(A), requests the court to set the reasonableness of the plaintiff's expert's fees in the present case.   Dr. James Merikangas is the plaintiff's expert in this case and is requesting the sum of $1,000.00 per hour for depositions, along with the prepayment of major travel expenses.   Dr. Merikangas' fee schedule further notes that “payment is nonrefundable if the appointment is canceled less than seventy-two business (hours) from the date requested.”   In support of her motion, the defendant requests that the court schedule a reasonable fee for the taking of Dr. Merikangas' deposition, and further requests that the court set a reasonable fee at approximately $500 per hour, and that cancellation fees should be based upon actual time expended and/or actual economic loss incurred.   Additionally, the parties agreed to conduct the deposition for a reasonable date and time when Dr. Merikangas would be present in Connecticut and, as such the defendant seeks a ruling as to whether the defendant should be responsible for any such travel expenses, particularly since the defendant was, and still would be, willing to travel to Maryland, where Dr. Merikangas presently has an office, for the taking of his deposition.

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.”  (Emphasis added.)

“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.

“In Gionfriddo v. Hartford Hospital Real Estate, Superior Court, judicial district of Hartford, Docket No. CV 96 0563347 (September 8, 1998, Rittenband, J.) (22 Conn. L. Rptr. 648), the court determined that expert witness fees of $300 per hour of deposition, $150 per hour for deposition preparation and $150 per hour for travel time were reasonable for the time an expert spent in responding to discovery pursuant to § 13–4(3).

“In Cornelio v. Stamford Hospital, Superior Court, complex litigation docket at Waterbury, Docket No. X01 CV 98 0166769 (February 21, 2003, Hodgson, J.), the issue was whether a fee of $3,500 for each half-day of deposition charged by the plaintiff's medical expert was unreasonable.   The plaintiff asserted that the fee was reasonable given the doctor's credentials.   The court stated that this fee was unreasonable in that the doctor's credentials were the same as those of similarly situated persons in the medical profession who charged $300 per hour of deposition time and that the doctor should instead receive a comparable fee.  Id.

“The issue of what constitutes a reasonable fee has been addressed in recent decisions as well.   In Baldasty et al. v. Bottger et al., Superior Court, judicial district of Danbury at Danbury, Docket No. 044000492 (September 4, 2008) [46 Conn. L. Rptr. 285], the deposition fee for a neurosurgeon was set at $500 per hour.   Minimal information was known about the complexity of the discovery, or past fees traditionally charged by experts in similar matters.   In Johnson v. Kler, Superior Court, judicial district of Waterbury at Waterbury, Docket No. 065001498 (July 15, 2008) [45 Conn. L. Rptr. 868], the testimony fee for a pain management specialist was set at $525 per hour for one hour of preparation time and $675 per hour for deposition testimony.   The court in Baldasty, looked to the following criteria in making its decision:  the nature of the plaintiff's claims disclosed in the pleadings, superior court decisions on point and the court's general knowledge of expert witness fees of the type at issue.  Id., see also, Rose v. Jolly, Superior Court, judicial district of Danbury at Danbury, Docket No. 0203474670 (July 12, 2004) [37 Conn. L. Rptr. 494] (fee for orthopedic surgeon set at $400 per hour);  Brought v. Batson, Superior Court, judicial district of Danbury at Danbury, Docket No. 020347176 (December 17, 2003) [36 Conn. L. Rptr. 189] (fee for expert neurologist set at $400 per hour).”   Steward v. Spell, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 106016288 (Wilson, J.).

Based upon a review of the qualifications of Dr. Merikangas' qualifications, and a review of the nature and extent of his testimony as set forth in the disclosure, and based upon this court's knowledge of Dr. Merikangas' expertise, based on this court's familiarity with many workers' compensation cases in which Dr. Merikangas testified as an expert, the court cases and the rates for similar experts, the court finds that the rate of $1,000 per hour for the deposition fee is unreasonable and further sets the allowable fee for Dr. Merikangas with regard to his deposition at $650 per hour.   Payment is to be made by the defendant on the day of the deposition.   Cancellation fees shall be based upon actual time expended or actual economic loss incurred.

It was this court's understanding that Dr. Merikangas was scheduled to be present in Connecticut and that his deposition would be taken while he was present here in Connecticut.   Therefore, the expert fees shall be limited to the deposition fee set by the court at $650 per hour.   This excludes any travel expenses, since Dr. Merikangas was going to be present in Connecticut anyway, and since the defendant's counsel was willing to travel out of state for the taking of Dr. Merikangas' deposition and agreed to conduct the deposition while he planned to be present in Connecticut.

The court further orders that any cancellation fees shall be based upon actual time expended and/or actual economic loss incurred.   See Fitzgerald v. Martinez, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 12 6006782 (Marcus, J.).

CONCLUSION

For the foregoing reasons, the expert fees shall be limited to the deposition fee set by the court at $650 per hour.   This excludes any travel expenses, since Dr. Merikangas was going to be present in Connecticut anyway, and since the defendant's counsel was willing to travel out of state for the taking of Dr. Merikangas' deposition and agreed to conduct the deposition while he planned to be present in Connecticut.   The court further orders that any cancellation fees shall be based upon actual time expended and/or actual economic loss incurred.   It is so ordered.

Wilson, J.

Wilson, Robin L., J.