Expert Witness Deposition Fees

The rules of civil procedure were amended well before my time to require that retained experts disclose their opinions via written report.  The idea was if the opinions were disclosed in writing, this would result in fewer depositions.  I am skeptical as to whether that goal was met, as in my practice it is rare that I do not depose the opposing expert.  When I do, my client gets to pay the opposing expert for their deposition time, which sometimes leads to disputes.

In Nevada state courts, the fees an expert witness is able to charge and collect for deposition time is governed by NRCP 30(h).

(1) A party desiring to depose any expert who is to be asked to express an opinion, shall pay the reasonable and customary hourly or daily fee for the actual time consumed in the examination of that expert by the party noticing the deposition.  If any other attending party desires to question the witness, that party shall be responsible for the expert’s fee for the actual time consumed in that party’s examination.  If requested by the expert before the date of the deposition, the party taking the deposition of an expert shall tender the expert’s fee based on the anticipated length of that party’s examination of the witness.  If the deposition of the expert takes longer than anticipated, any party responsible for any additional fee shall pay the balance of that expert’s fee within 30 days of receipt of a statement from the expert.  Any party identifying an expert whom that party expects to call at trial is responsible for any fee charged by the expert for preparing for and reviewing the deposition.

(2) If a party desiring to take the deposition of an expert witness pursuant to this subdivision deems that the hourly or daily fee of that expert for providing deposition testimony is unreasonable, that party may move for an order setting the compensation of that expert.  This motion shall be accompanied by an affidavit stating facts showing a reasonable and good faith attempt at an informal resolution of any issue presented by the motion.  Notice of this motion shall be given to the expert.  The court shall set the fee of the expert for providing deposition testimony if it determines that the fee demanded by that expert is unreasonable.  The court may impose a sanction pursuant to Rule 37 against any party who does not prevail, and in favor of any party who does prevail, on a motion to set expert witness fee, providing the prevailing party has engaged in a reasonable and good faith attempt at an informal resolution of any issues presented by the motion.

Although I am aware this issue is litigated, I have not been involved with it and have not been able to locate any rulings thus far, though I know they exist.

FRCP 26(b)(4)(E) governs this topic in the federal courts.

Payment. Unless manifest injustice would result, the court must require that the party seeking discovery:

(i)  pay the expert a reasonable fee for time spent in responding to discovery under Rule 26(b)(4)(A) or (D);

The rule was interpreted in Farace v. American Airlines, Inc., 2011 U.S. Dist. LEXIS 97276, 2011 WL 3841438 (D. Nev. 2011).  There a personal injury plaintiff designated a liability expert whom American wished to depose.  American objected to the expert’s demand for a $2,800 flat fee, paid in advance, for a minimum deposition of four hours.  “At American’s request, counsel for plaintiffs discussed the issue with Mr. Barbe, who … declined to modify the fee and explained that ‘this fee is based on a daily rate and includes the time needed to prepare for his deposition, the time to attend the deposition and the time to travel to and from the deposition.'”

The court then explained the standard against which the expert’s requested rate is considered.

Fed.R.Civ.P. 26(b)(4)(E) provides that “[u]nless manifest injustice would result, the court must require that the party seeking discovery … pay the expert a reasonable fee for time spent in responding to discovery under Rule 26(b)(4)(A) or (D).” “An expert’s hourly rate for professional services is presumptively a reasonable hourly rate for deposition.” Barrett v. Nextel Communications, Inc., 2006 U.S. Dist. LEXIS 10262, 2006 WL 374757 (E.D. Mich. 2006). Several factors may be relevant in determining a reasonable fee for an expert: “(1) the witness’s area of expertise; (2) the education and training that is required to provide the expert insight which 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 being 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 be of assistance to the court in balancing the interests implicated by Rule 26.” U.S. Energy Corp. v. Nukem, Inc., 163 F.R.D. 344, 345-46 (D.Colo. 1995). Of course the expert’s fee should not be so high as to impair a party’s access to necessary discovery or result in a windfall to the expert. Mathis v. NYNEX, 165 F.R.D. 23, 24 (E.D.N.Y. 1996).

Id.

The court noted it was provided no information against which to compare the requested rate.  “The court assumes, however, and there is no showing otherwise, that as a consulting engineer Mr. Barbe is ‘not like the physician who may have to block out time when he or she could see patients,’ and therefore may be justified in charging a flat rate fee for his or her deposition.”  Id. (quoting Massasoit v. Carter, 227 F.R.D. 264, 267 (M.D.N.C. 2005)) (finding exorbitant a flat rate fee of $2,000 for a deposition, “which could amount to over $600 per hour”).

The court finds that the flat rate fee Mr. Barbe is demanding in this case is inappropriate, unreasonable, and excessive. If the deposition were to last two hours, as American says, Mr. Barbe’s fee would be $1,400 per hour, which is indisputably excessive. Indeed, a four-hour deposition at the rate of $700 per hour is clearly excessive. This court is of the view that the appropriate measure of an expert witness’s compensation for giving deposition testimony is a reasonable hourly rate for the time actually spent in the deposition. The court has the discretion to determine what constitutes a reasonable fee for an expert witness at deposition. Rule 26(b)(4)(E). Cf. Edin v. Paul Revere Life Insurance Co., 188 F.R.D. 543, 545-46 (D. Ariz. 1999). On the record before us, the court finds that the reasonable rate for Mr. Barbe’s deposition is $300 per hour.

On a related topic, there is a debate in federal courts whether treating physicians are permitted to recover expert witness fees or nothing more than the standard $40 subpoenaed witness fee. This question arose in Axelson v. Hartford Ins. Co. of the Midwest, 2013 U.S. Dist. LEXIS 43335, 2013 WL 1261757 (D. Nev. Mar. 26, 2013). Plaintiff’s treating orthopedist asserted she was a surgical candidate and Hartford sought to depose him.

Dr. Elkanich charges $1,500 per hour for his deposition. He also requires that $1,500 be paid before he will appear for his deposition. Dr. Elkanich’s deposition was initially noticed for January 17, 2013. Defendant Hartford tendered the $1,500 to Dr. Elkanich and deposed him for approximately one hour on that date. Dr. Elkanich requested that the deposition be terminated so that he could attend to his medical duties. Defendant agreed. Defendant subsequently rescheduled Dr. Elkanich’s deposition for April 9, 2013. Dr. Elkanich demands that he be paid another $1,500 in advance of his rescheduled deposition. He also demands that Defendant execute a contract to pay his deposition fees before he will appear for the rescheduled deposition.

This apparently irked Hartford. It filed a motion cap Dr. Elkanich’s fee to “the $40.00 witness appearance fee authorized by 28 U.S.C. § 1821.” Plaintiff opposed. MJ Foley noted a split of authority in federal courts as to whether a treating physician may receive more than a witness appearance fee for deposition. The court concluded Dr. Elkanich, as a treating physician who had been apparently appropriately disclosed as an expert witness, could charge an expert witness fee.