Expert Witness Deposition Fees, Pt2

“How much can an expert witness charge for a deposition?” is one of the recurring questions I receive. I previously wrote about it here. The topic recently arose again in Walker v. Spike’s Tactical, LLC, 2015 U.S. Dist. LEXIS 1125 (D. Nev. Jan. 2, 2015).

The case started with a somewhat unique fact pattern. “Plaintiff claims that he was injured while using a flare launcher attached to an AR-15 manufactured by Defendant Spike’s Tactical and sold to him by Defendant Badass Tactical.” “Plaintiff retained Dr. Enrico Fazzini to perform a neurological exam and provide an expert report. Defendants wish to depose Dr. Fazzini; however, he has attached a fee schedule to his report that indicates he charges $1,500/hr. for telephonic depositions, and $2,500/hr. for an in-person deposition.” The parties disputed whether the rate was reasonable.

The federal courts that have addressed this issue generally apply seven factors in determining the reasonableness of an expert’s fees. These include: (1) the expert’s area of expertise; (2) the education and training required to provide the expert insight that is sought; (3) the prevailing rates of other comparable respected available experts; (4) the nature, quality and complexity of the discovery responses provided; (5) the fee actually charged to the party that 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. Borel v. Chevron USA, Inc., 265 F.R.D. 275, 276 (E.D. La. 2010); Fisher-Price, Inc. v. Safety 1st, Inc., 217 F.R.D. 329, 333 (D. Del. 2003); Edin v. Paul Revere Life Insurance Co., 188 F.R.D. 543, 546 (D. Ariz. 1999); Se-Kure Controls, Inc. v. Vanguard Products Group, Inc., 873 F.Supp.2d 939 (N.D. Ill. 2012); Barnes v. District of Columbia, 274 F.R.D. 314 (D. D.C. 2011).

The goal of Rule 26(b)(4) is to set expert fees “so that plaintiffs will not be unduly burdened in their efforts to hire quality experts, while defendants will not be hampered by unreasonably high fees which prevent feasible discovery.” Fleming v. United States, 205 F.R.D. 188 (W.D. Va. 2000). However, “[u]ltimately, it is the court’s discretion to set an amount that it deems reasonable.” Id., citing Hurst v. United States, 123 F.R.D. 319, 321 (D. S.D. 1988).

In Borel, the court held that the proper hourly rate for deposition testimony was the amount the expert charged plaintiff’s counsel. There, plaintiff retained an expert safety witness who testified for a living. Before the deposition, he stated he would not testify unless he received $1,500. His deposition lasted approximately three hours, so he received almost $500/hr., although he only charged Plaintiff’s counsel $210/hr. The court granted the defense request to reduce the fee to $210/hr. for three hours of deposition time.

Notably, “[n]either party has provided the court with evidence of the prevailing rates of other comparable, respected, available experts in this area.” Nevertheless, “the court fixes Dr. Fazzini’s fee for testifying at deposition at $1,500/hr. Dr. Fazzini is willing to testify for $1,500/hr. if the deposition occurs telephonically. The deposition will be taken in his office on a date and time convenient to him while he is in Las Vegas.”

The ruling seems like an awkward decision for the court. The parties effectively just argued either the fee is reasonable or unreasonable, but did not provide evidence or information to support that position. Key evidence to support either position would be to show what other neurologists in the area charging. Lacking that evidence, the court guessed based upon Dr. Fazzini’s own fee schedule. If you file a motion to fix an expert’s fee, I suggest attempting to provide the rates of other similarly situated expert witnesses.

In the meantime, if you are deposing Dr. Fazzini, you now have a case fixing his rate at $1,500/hr.