Opinion
Civil Action No. 00-2263-GTV
February 26, 2002
MEMORANDUM AND ORDER
This case is before the court on Plaintiffs' motion for payment of expert discovery fees (Doc. 294). Plaintiffs request that the court order Defendant Aventis Pharmaceuticals, Inc. ("Aventis") to pay reasonable fees for the time that Plaintiffs' experts spent responding to discovery under Federal Rule of Civil Procedure 26(b)(4)(C). For the reasons set forth below, Plaintiffs' motion is granted in part and denied in part.
Rule 26(b)(4)(C) mandates, in pertinent part, that "[u]nless manifest injustice would result, (i) the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery. . . ." Fed.R.Civ.P. 26(b)(4)(C). What constitutes a reasonable expert witness fee is within the court's sound discretion. Edin v. Paul Revere Life Ins. Co., 188 F.R.D. 543, 545-46 (D.Ariz. 1999) (citing 8 Charles Alan Wright Arthur R. Miller, Federal Practice and Procedure, § 2034 (2d ed. 1994)). The court is mindful that while a party may contract with any expert that it chooses, the court will not automatically tax the opposing party with any unreasonable fees charged by the expert. Bowen v. Monahan, 163 F.R.D. 571, 574 (D.Neb. 1995).
In this case, Aventis does not object to paying fees for the time Plaintiffs' experts spent in deposition. Rather, Aventis primarily objects to paying some of Plaintiffs' experts fees for time they spent preparing for their depositions. The court will address the arguments with respect to each expert in turn.
Although Aventis objects to paying fees for some of Plaintiffs' experts' deposition preparation time, it does not do so under the general argument that the time that an expert witness spends preparing for a deposition does not constitute time spent "responding to discovery" under Rule 26(b)(4)(C). Thus, the court does not decide in this opinion whether deposition preparation time in general falls under the purview of Rule 26(b)(4)(C).
A. Nelda Ferguson, M.D. Plaintiffs request that Aventis pay $300.00 for one and one-half hours that Dr. Ferguson spent preparing for her deposition and two hours that she spent in deposition. Aventis does not object to Plaintiffs' request. Accordingly, the court grants Plaintiffs' motion with respect to Dr. Ferguson and orders Aventis to pay $300.00 for Dr. Ferguson's time.
Aventis is a co-defendant in this case with the Menninger Clinic, Inc. ("Menninger"). Evidently, Aventis and Menninger were to split the fees for the deposition time of Plaintiffs' expert witnesses. According to Plaintiffs, Menninger has already paid its requested share of Plaintiffs' expert witness fees. Therefore, the amounts enumerated in this opinion are based solely on the pro-rata share that Plaintiffs request from Aventis.
B. Ernest D. Smith
Plaintiffs request that Aventis pay $375.00 for the time that Mr. Smith spent in deposition. Aventis does not object to Plaintiffs' request. Accordingly, the court grants Plaintiffs' motion with respect to Mr. Smith and orders Aventis to pay $375.00 for Mr. Smith's time.
C. Harold Bursztajn, M.D.
Plaintiffs request that Aventis pay $3,200.00 for sixteen hours that Dr. Bursztajn allegedly spent preparing for his deposition and $1,600.00 for eight hours he spent in and traveling to and from his deposition. Although Aventis does not object to paying the $1,600.00 for Dr. Bursztajn's travel and actual deposition time, it requests that the court deny Plaintiffs' demand for $3,200.00 for purported deposition preparation time. The court agrees that, given the facts of this case, Aventis should not be compelled to pay for sixteen hours of Dr. Bursztajn's alleged deposition preparation time. The court concludes that $800.00, which includes Aventis's pro-rata share totaling $200.00 per hour for four hours of deposition preparation, is a fee adequate to cover Dr. Bursztajn's deposition preparation expenses in this case. Accordingly, the court grants in part and denies in part Plaintiffs' motion with respect to Dr. Bursztajn and orders Aventis to pay $800.00 for Dr. Bursztajn's deposition preparation time and $1,600.00 for Dr. Bursztajn's deposition and travel time. Thus, Aventis is ordered to pay a total of $2,400.00 for Dr. Bursztajn's time.
D. Peter Breggin, M.D.
Plaintiffs request that Aventis pay $2,800.00 for sixteen hours that Dr. Breggin allegedly spent preparing for his deposition and $1,750.00 for time that Dr. Breggin spent in deposition. Although Aventis does not object to paying the $1,750.00 for Dr. Breggin's actual deposition time, it requests that the court deny Plaintiffs' demand for the $2,800.00 for purported deposition preparation time. The court agrees that, given the facts of this case, Aventis should not be compelled to pay for sixteen hours of Dr. Breggin's alleged deposition preparation time. The court concludes that $700.00, which includes Aventis's pro-rata share totaling $175.00 per hour for four hours of deposition preparation, is a fee adequate to cover Dr. Breggin's deposition preparation expenses in this case. Accordingly, the court grants in part and denies in part Plaintiffs' motion with respect to Dr. Breggin and orders Aventis to pay $700.00 for Dr. Breggin's deposition preparation time and $1,750.00 for Dr. Breggin's deposition time. Thus, Aventis is ordered to pay a total of $2,450.00 for Dr. Breggin's time.
E. James "Rusty" Hale, C.P.A.
Plaintiffs request that Aventis pay $187.50 for three hours that Mr. Hale spent preparing for his deposition and $281.25 for four and one-half hours that Mr. Hale spent in deposition. Although Aventis does not object to paying the fee for Mr. Hale's deposition time, it requests that the court deny Plaintiffs' demand for Mr. Hale's fee for deposition preparation time. The court concludes that Mr. Hale's fee of $187.50 for three hours of deposition preparation time is reasonable in this case. Accordingly, the court grants Plaintiffs' motion with respect to Mr. Hale and orders Aventis to pay the total requested fee of $463.75 for Mr. Hale's time.
Plaintiffs' counsel's request for payment of Mr. Hale's expert witness fees indicated that the invoice submitted by Mr. Hale was $10.00 less than what Mr. Hale's hourly rates and time expended would indicate. Accordingly, Plaintiffs' counsel demanded that Aventis pay a total of $463.75, as opposed to the $468.75 that his hourly rate and time expended would indicate, for Mr. Hale's time.
The court finds unavailing Aventis's argument that, even if it is required to pay for some of Mr. Hale's deposition preparation time, it should not be required to pay any more than a pro-rata share of $95.00 per hour. Aventis bases its argument on alleged deposition testimony from Mr. Hale that he only charges $95.00 per hour for deposition preparation time, but that he charged $125.00 per hour in this case. However, Aventis did not provide the court with Mr. Hale's purported deposition testimony regarding his deposition preparation rates. Thus, the court need not consider Aventis's argument, but even if it did, the court would not find Mr. Hale's rate of $125.00 per hour for deposition preparation unreasonable.
F. Thomas Donica, M.D.
Plaintiffs request that Aventis pay $262.50 for one hour and forty-five minutes that Dr. Donica spent preparing for his deposition and $525.00 for three and one-half hours that Dr. Donica spent in deposition. Although Aventis does not object to paying the $525.00 for Dr. Donica's deposition time, it requests that the court deny Plaintiffs' demand for $262.50 for deposition preparation time because it is unsupported by Dr. Donica's deposition testimony. The court disagrees. Dr. Donica testified that he spent one-half hour preparing for his deposition and then met with Plaintiffs' counsel for another one hour and fifteen minutes about his deposition. Given the facts as presented, Dr. Donica's meeting with Plaintiffs' counsel can also be considered deposition preparation. Thus, the court concludes that Dr. Donica's fee of $262.50 for deposition preparation time is reasonable. Accordingly, the court grants Plaintiffs' motion with respect to Dr. Donica and orders Aventis to pay $262.50 for Dr. Donica's deposition preparation time and $525.00 for Dr. Donica's deposition time. Thus, Aventis is ordered to pay a total of $787.50 for Dr. Donica's time.
IT IS, THEREFORE, BY THE COURT ORDERED that Plaintiffs' motion for payment of expert discovery fees (Doc. 294) is granted in part and denied in part.
IT IS FURTHER ORDERED that Aventis pay a total of $300.00 for Dr. Ferguson's time, $375.00 for Mr. Smith's time, $2,400.00 for Dr. Bursztajn's time, $2,450.00 for Dr. Breggin's time, $463.75 for Mr. Hale's time, and $787.50 for Dr. Donica's time.
Copies of this order shall be transmitted to counsel of record for the parties.
IT IS SO ORDERED.