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determining reasonable fees based on the only example provided: that of the opposing parties' expert
Summary of this case from Chan Young Bak v. Metro-North R.R. Co.Opinion
No. 00 Civ. 9377 (SHS)
June 27, 2002
MEMORANDOM AND ORDER
Defendants have moved pursuant to Fed.R.Civ.P. 26(b)(4)(C) to compel plaintiffs to pay the $7,000 deposition fee of defendants' expert Dr. Kenneth Steinglass. The Court grants the motion but finds that $7,000 is an unreasonable fee and accordingly reduces the amount to $2,625.
Defendants filed this motion to compel as a cross-motion to plaintiffs' counsel's motion to withdraw as counsel. The Court previously granted that motion.
Fed.R.Civ.P. Rule 26(b)(4)(C) provides that "[u]nless manifest injustice would result., the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under this subdivision." In evaluating whether a proposed expert fee is "reasonable," courts have considered the following factors: "(1) the witness's area of expertise, (2) the education and training that is required to provide the expert insight that is sought, (3) the prevailing rates for other comparably respected available experts, (4) the nature, quality and complexity of the discovery responses provided, (5) the cost of living in the particular geographic area, (6) the fee being charged by the expert to the party who retained him, (7) fees traditionally charged by the expert on related matters, and (8) any other factor likely to be of assistance to the court in balancing the interests implicated by Rule 26." Coleman v. Dydula, 190 F.R.D. 320, 324 (W.D.N.Y. 1999 See also Grdinich v. Bradlees, 187 F.R.D. 77, 82-83 (S.D.N.Y. 1999); Mathis v. NYNEX, 165 F.R.D. 23, 24-25 (E.D.N.Y. 1996); Cabana v. Forcier, 200 F.R.D. 9, 15-16 (D. Mass. 2001). These factors merely serve as a guide; the "ultimate goal" is to balance the parties' interests so that the party retaining the expert witness is not "unduly hampered in [its] efforts to attract competent experts" while the opposing party is not "unfairly burdened by excessive ransoms which provide windfalls for the [opposing side's] experts." Cabana, 200 F.R.D. at 16 (quoting Anthony v. Abbott Lab., 106 F.R.D. 461, 465 (D.R.I. 1985)).
After considering the above factors, the Court concludes that the requested $7000 fee is unreasonable. Undoubtedly, Dr. Steinglass is a highly qualified expert. He graduated with honors from Harvard Medical School in 1972, is currently a professor at Columbia University College of Physicians and Surgeons, and serves as Director of the Section of General Thoracic Surgery at the Presbyterian Hospital of the City of New York. (Ward Aff. ¶ 6, Ex. G.)
Despite Dr. Steinglass' qualifications, the $7000 fee is unreasonable because it far exceeds rates charged by comparable experts. On the date in question, Dr. Steinglass arrived at defense counsel's office at 9:00 a.m. to prepare for his deposition, which was scheduled to begin at 10:30 a.m. Due to the late arrival of plaintiffs' counsel, the deposition actually began at 11:30 a.m. and ended shortly after 3 p.m. (Ward Aff. ¶ 4.) In total, the requested fee amounts to $1167 per hour for 6 hours of preparation and testimony.
In contrast, defendants paid $2037.50 to plaintiffs' expert Dr. Louis Silverman for 2 1/4 hours of preparation and 2 1/2 hours of deposition testimony, at a rate of $350 per hour for preparation and $500 per hour for the deposition itself. (Ward Aff., Ex. A; Chase Aff ¶ 7.) Dr. Steinglass has charged defendants $400 per hour for the review of documents and transcripts. (Ward Aff. ¶ 7.) These rates, while high, are in line with medical expert fees held to be reasonable by other courts. See, e.g., Cabana 200 F.R.D. at 16 (rate of $375 per hour upheld for "nationally recognized" medical toxicology expert); Edin v. Paul Revere Life Ins. Co. 188 F.R.D. 543, 547 (D. Ariz. 1999) (surgeon's requested rate of $800 for the first hour of deposition and $600 for the second hour reduced to $450 per hour); Magee v. Paul Revere Life Ins. Co., 172 F.R.D. 627, 646-47 (E.D.N.Y. 1997) (psychiatrist's fee reduced from $350 to $250 per hour); Mathis, 165 F.R.D. at 26 (psychiatrist's requested rate of $250 per hour held to be reasonable); Hose v. Chicago North Western Transp. Co., 154 F.R.D. 222, 227 (S.D. Iowa 1994) (neurologist's fee reduced from $800 to $400 per hour); Bowen v. Monahan, 163 F.R.D. 571, 574 (D. Neb. 1995) (medical toxicology expert's $3000 fee for half-day deposition reduced to $1,500).
Plaintiffs have suggested that Dr. Steinglass be compensated at the same rate as plaintiffs' expert Dr. Silverman. While the Court does not wish to imply that both parties' experts must be compensated at the same rate, Dr. Silverman's fees were the only example of comparable expert fees submitted to the Court and are within the range found to be reasonable by other courts.
Accordingly, plaintiffs are directed to pay Dr. Steinglass for 2 1/2 hours preparation time and 3 1/2 hours deposition testimony, a total of $2,625.
SO ORDERED.