Lianna Minarsky et al. v. Mariah Larue (2015)

MEMORANDUM OF DECISION ON MOTION TO SET REASONABLE FEES FOR EXPERT (# 147.00)

In this case arising from a July 24, 2009, automobile accident, the defendant Mariah Larue disclosed Matthew D. Skolnick, an orthopaedic surgeon, as an expert witness regarding his review of medical records of plaintiffs Lianna Minarsky and Michael Minarsky.   The plaintiffs wish to depose Dr. Skolnick.   Dr. Skolnick has demanded $2,400, in advance, non-refundable, for up to three hours of testimony.¹  The plaintiffs, disputing both the fee and the fee structure, moved on October 2, 2014, for a judicial determination of Dr. Skolnick's fee pursuant to Practice Book § 13–4.   The defendant filed an opposing brief on November 14, 2014.   The motion was argued on December 8, 2014.

FACTS

Dr. Skolnick is an orthopaedic surgeon licensed in this state.   According to his curriculum vitae submitted with the present motion, he was in the top quarter of his New York University Medical School class and has been certified by the American Board of Orthopaedic Surgeons since 1976.   According to his practice's apparently standard (“To Whom It May Concern”) invoice for deposition services, Dr. Skolnick's practice charges $2,400, in advance, based on three hours at $800 per hour for testifying at a deposition and that $2,400 is nonrefundable.

DISCUSSION

The plaintiffs seek an order setting Dr. Skolnick's fee at $400 per hour, not including preparation time, with only one hour to be paid in advance.   The basis for the present motion is Practice Book § 13–4(c)(2), which 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.”  “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.”   Grillo v. Cambridge, Superior Court, judicial district of New London, Docket No. CV–11–6008198–S (September 4, 2013) (56 Conn. L. Rptr. 931, 932).

However, 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 or policy reason to interpret § 13–4(c)(2) in any way that encourages attorneys or parties to use court resources and cause each other trouble and expense by unreasonably failing “to agree on the fees and expenses due under this subsection.”   There being no 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).²  Thorough litigation of the Fisher–Price criteria, particularly the seventh (“any other factor likely to assist the court ․”), could take substantial time, in preparation and in court.   Such litigation within litigation should be avoided.   Garvin v. Altone's Italian American Restaurant, LLC, Superior Court, judicial district of New London, Docket No. CV–11–6007619–S (May 13, 2014).

A party selects an expert witness for business and strategic reasons.   It is not the court's responsibility to minimize the financial consequences of that selection.  Id.

A person's decision to offer consulting and expert witness services is a business decision.   In general, it is not the court's responsibility to ensure that that is a sound decision.   In particular, it is not the court's responsibility to ensure that an expert witness's income or pricing structure is maintained, let alone maintained by the opponent of the party who retains him.  Id.

It is the court's responsibility to determine, when necessary in individual cases, a reasonable fee for an expert witness's attendance at a deposition by his client's adversary.  Practice Book § 13–4(c)(2).   Even more important, it is the court's over-arching responsibility to expedite the fair resolution of court cases within the law, equity and the rules of practice.   The court's discharge of the former responsibility necessarily involves balancing the interests of the parties both in relation to each other and in relation to the interest of the public and the court in the court's fulfillment of the latter responsibilities.   That balancing process includes not encouraging parties to make—or to force their adversaries to make—motions like the present one, which delay, and increase the cost of, preparation and resolution of cases in this court.  Id.

The court is not required to accept Dr. Skolnick's or the plaintiffs' counsel's opinion as to the reasonableness of Dr. Skolnick's fee.   See Stimac v. Maletz, Superior Court, judicial district of New London, Docket No. CV–10–6002934–S (February 7, 2014).   This court has, over objection that they are too high, found hourly fees in excess of Dr. Skolnick's claimed $800 hourly fee reasonable in cases of orthopaedic surgeons with both more and fewer years in practice than Dr. Skolnick.³  The court sees no sound reason to disapprove a lower hourly fee for Dr. Skolnick.   On the other hand, the plaintiff is only required to compensate Dr. Skotnick for his actual time (and any reasonable, proven out-of-pocket expense) required for the deposition, including travel but excluding preparation (which is part of his service to the defendant).

The defendants shall pay Dr. Skolnick $800 per hour for the actual time consumed by his deposition, rounded (not necessarily up) to the nearest quarter hour. $1,200 is ordered to be paid in advance for ninety minutes, because the deposition encompasses two plaintiffs' medical records.   The balance, if any, shall be paid (or the unearned portion of the advanced fee refunded by Dr. Skolnick's) within two business days after the end of the deposition.

If Dr. Skolnick fails, without good cause, to appear for deposition at a mutually convenient date, time and place following the plaintiffs' payment of $1,200 in advance and tender of the fees here established, the appropriate sanction would be preclusion of his testimony at trial.   This ruling affects neither the parties' power to stipulate to vary the effect of this ruling nor what Dr. Skolnick can charge the defendant for his services, including for any difference between what the plaintiffs are required to pay and what Dr. Skolnick chooses to charge the defendants.

Cole–Chu, J.

FOOTNOTES

FN1. Dr. Skolnick's invoice does not say whether the services covered by this fee include preparation for the deposition, but, at oral argument, defense counsel stipulated it would not..  FN1. Dr. Skolnick's invoice does not say whether the services covered by this fee include preparation for the deposition, but, at oral argument, defense counsel stipulated it would not.

FN2. “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)..  FN2. “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. See Grillo v. Cambridge, supra, Superior Court, Docket No. CV–11–6008198–S (Dr. Andrew Bezos:  Yale Medical School;  board certified orthopaedic surgeon since 1995;  $1,000/hour approved);  Stimac v. Maletz, supra, Superior Court, Docket No. CV–10–6002934–S (Dr. Marc Chernoff:  SUNY Stony Brook Medical School;  board certified orthopaedic surgeon since 2001;  $1,000/hour approved);  Garvin v. Altone's Italian American Restaurant, LLC, supra, Superior Court, Docket No. CV–11–6007619–S (Dr. David Kalaygian, University of Chicago Medical School;  board certified orthopaedic surgeon since 1972;  $1,000/hour approved)..  FN3. See Grillo v. Cambridge, supra, Superior Court, Docket No. CV–11–6008198–S (Dr. Andrew Bezos:  Yale Medical School;  board certified orthopaedic surgeon since 1995;  $1,000/hour approved);  Stimac v. Maletz, supra, Superior Court, Docket No. CV–10–6002934–S (Dr. Marc Chernoff:  SUNY Stony Brook Medical School;  board certified orthopaedic surgeon since 2001;  $1,000/hour approved);  Garvin v. Altone's Italian American Restaurant, LLC, supra, Superior Court, Docket No. CV–11–6007619–S (Dr. David Kalaygian, University of Chicago Medical School;  board certified orthopaedic surgeon since 1972;  $1,000/hour approved).

Cole–Chu, Leeland J., J.