Theresa Gray v. Daniel Schwartz, M.D. et al. (2014)

MEMORANDUM OF DECISION RE MOTION TO SET REASONABLE EXPERT FEE (# 119)

This is a medical malpractice action brought by the plaintiff, Theresa Gray against the defendants, Daniel Schwartz, M.D. and Midstate Medical Group, P.C. The defendants filed a motion requesting the court to set a reasonable expert witness fee in relation to the deposition of the plaintiff's expert, Emily Littman, Ph.D., a neuropsychologist.   In the course of this action, the plaintiff retained Dr. Littman to perform a forensic neuropsychological evaluation and to serve as an expert to testify, inter alia, as to the effect of the plaintiff's strokes on her daily life.   The defendants noticed Dr. Littman's deposition for August 22, 2013, at 9:00 a.m. at her Waterbury office.   The plaintiff advised that Dr. Littman's fee would be $2,500 per half day and $5,000 per full day.   Without knowing a definitive end date to the deposition, Dr. Littman reserved a full day for her deposition and charged a fee of $5,000 regardless of when the deposition would actually end and required prepayment of the fee.   The defendants argue that Dr. Littman's charge of $5,000 is unreasonable and should be adjusted to $300 per hour.   The defendants further argue that prepayment should not be required.   The plaintiff argues that Dr. Littman is a solo practitioner.   She treats individuals who have various psychological and emotional issues, sometimes with relatives in attendance and therefore it is not her practice to schedule or cancel patient appointments at the last minute, nor does she have arrangements with other professionals to attend to her patients in her absence.   The plaintiff further argues that given Dr. Littman's area of expertise, the nature of her practice, and the amount of work that she has performed in this case, her expert testimony fee of $2,500 per half day should not be reduced as unreasonable.   The court heard oral argument on the motion.

DISCUSSION

Practice Book § 13–4(c)(3) 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' 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.”

This court has addressed the issue of what constitutes a reasonable expert fee in Steward v. Spell et al., Superior Court, judicial district of New Haven at New Haven, Docket No. CV 106016288, (January 13, 2012, Wilson, J.) [53 Conn. L. Rptr. 304], stating:  “There is no appellate authority in Connecticut that sheds light on what a reasonable expert witness fee is under Practice Book § 13–4(c)(3).   The trial courts applying Practice Book § 13–4(c)(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 960563347 (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(c)(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.

“In Beckett v. Waterbury Hospital, Superior Court, Complex Litigation Docket at Waterbury, Docket No. X01 CV 00 0159614 (October 23, 2002, Hodgson, J.) (33 Conn. L. Rptr. 356), the defendant's expert witness, a hospital-based salaried doctor, stated at his deposition that he would be charging $1,000 per hour of deposition.   Deposing counsel did not dispute the charge, proceeded with the deposition, and upon completion, challenged the reasonableness of the fee charged pursuant to § 13–4(c)(3).  Id. The court determined that the fee was unreasonable, stating that the doctor was not deprived of income during the deposition and proffered no justification for the fee of $1,000 per hour other than it was his choice to charge it.  Id. Additionally, the court took into consideration that other medical experts involved in the case charged between $250 to $400 per hour of deposition.   The court reduced the fee to $300 per hour.  Id. In its ruling, the court disagreed with the decision in Sandler v. New Haven Chiropractic, Superior Court, judicial district of Ansonia–Milford at Milford, Docket No. 265862 (January 9, 1989), which suggested that when a party learns that an expert intends to charge an exorbitant fee that party must immediately obtain a court ruling as to its reasonableness.  Id. The court explained that such a rule may result in a delay tactic because counsel could encourage their experts to charge exorbitant fees, which would force opposing counsel to seek a court order, thus delaying or possibly precluding a deposition.  Beckett v. Waterbury Hospital, supra, Superior Court, Docket No. X01 CV 00 0159614.

“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. 495] (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, supra.

The defendants request this court to set Dr. Littman's fee for deposition at the rate of $300 per hour.   The plaintiff argues that Dr. Littman's fee of $2,500 per half day is reasonable.   Although a workers' compensation case is different from a civil case, there are similarities in the types of injuries that occur and the nature and extent of injuries and treatment for those injuries in each situation.   Thus, the court, as it did in the Stewart decision, in addition to the federal rules, also looks to the workers' compensation commission guidelines for physicians when charging for depositions for guidance.   The State of Connecticut Workers' Compensation Commission Professional Guide for Attorneys, Physicians and Other Health Care Practitioners, Guidelines for Cooperation allows for “[a]ny physician rendering services under the workers' compensation system [to] charge up to $500 per hour for a deposition ․” WCC Guidelines for Cooperation, Part V, Sec.A(3), p. 16.

After having considered the respective parties' memoranda of law and after having heard their oral arguments and also reviewing the nature of the plaintiff's injuries and claims, the complexity of the case, in that is that it is a medical malpractice case, reviewing superior court decisions on point, and having taken into consideration the factors set forth in the federal rules and having reviewed the workers' compensation guidelines, the court finds that a reasonable fee for the deposition of Dr. Littman is at a rate of $475 per hour, that fee excludes preparation time pursuant to Practice Book § 13–4(c)(2).   It is so ordered.

Wilson, J.

Wilson, Robin L., J.