Opinion
Civil Action No. 01-2021-CM.
May 7, 2002
MEMORANDUM AND ORDER
This matter is before the court on plaintiffs' Motion to Compel Payment of Expert Witness Deposition and Deposition Preparation Time (Doc. 117) and defendant Paul Jaster, M.D.'s Motion to Compel Production of Documents (Doc. 128).
I. Motion to Compel Payment of Expert Witness Deposition and Deposition Preparation Time
Plaintiffs move the court to order defendants to pay for the expert witness deposition and deposition preparation time for Richard F. Frires, M.D. Dr. Frires's deposition was taken by defendants on October 22, 2001. The deposition was not finished in the amount of time scheduled, so a second date was arranged to conclude the deposition. The second deposition was conducted on November 13, 2001.
Pursuant to Federal Rule of Civil Procedure 26, a party seeking discovery from an expert is required to pay "a reasonable fee for time spent in responding to discovery." Fed.R.Civ.P. 26(b)(4)(C). Plaintiffs have requested payment for Dr. Frires's time in preparing and giving the two depositions. Defendants argues that the amount plaintiffs have requested is excessive and unreasonable.
Dr. Frires's billing reveals a total deposition time of 4.25 hours and a total preparation time of 30 hours. Specifically, the bill reads as follows:
10/1/01 Medical Record Review 1.5 Hours
10/2/01 Calvin Depo 2.5 Hours
10/3/01 Hunziker Depo 1.0 Hours
10/5/01 Dawn Nelson Depo, Rev. Record 5.0 Hours
10/7/01 Burton Depo 1.0 Hours
10/12/01 John Nelson Depo 1.0 Hours
10/18/01 Review protocols, Jaster and
Calvin Depos 4.0 Hours
10/19/01 Medical Record Review 2.25 Hours
10/21/01 Depo Prep rec review 2.25 Hours
10/21/01 Meeting with Attorney and
Depo Prep 3.5 Hours
10/22/01 Meeting with Attorney 1.5 Hours
10/22/01 Deposition Huron Hosp 3.0 Hours
11/13/01 Rev. Records, Depo Prep, review
Frires Depo 4.5 Hours
11/13/01 Depo at Huron Hosp 1.25 Hours
DUE: 4.25 @ $450.00 $1,912.50
30 @ $350.00 $10,500.00
As a general rule, this court does not believe it is appropriate to second-guess the amount of time it takes an expert to prepare for a deposition. However, upon review of Dr. Frires's billing statement, and in light of the number of hours (30) it took Dr. Frires to prepare for a deposition that lasted only 4.25 hours, the court concludes that the fees requested for payment of Dr. Frires's time is unreasonable. In particular, Dr. Frires's billing statement appears to reveal several duplicative entries for which defendants should not have to pay.
On August 15, 2000, Dr. Frires prepared his expert report. To prepare that report, Dr. Frires reviewed medical records from Salina Regional Health Center Emergency Department, Smokey Hill Family Practice, and Wesley Hospital, and also reviewed an affidavit prepared by Dawn Nelson. Dr. Frires based his opinion upon that review of documentation. Then, to prepare for his deposition, Dr. Frires reviewed the same medical records he reviewed to prepare his expert report and, to prepare for the continuation of his deposition, Dr. Frires reviewed those same medical records.
The court notes that Dr. Frires's deposition was taken more that a year after he prepared his expert report. Thus, a review of the medical records after a lapse of one year is appropriate for Dr. Frires to prepare to give his deposition. However, there are multiple entries denoting a review of the records, and the total number of hours reviewing such records appears excessive. The entries dated 10/1/01 and 10/19/01, entitled "Medical Record Review," consisted of 3.75 hours, which the court finds is a reasonable amount of time in which to review the medical records. The court therefore finds that the remaining time spent reviewing records is excessive. The court will reduce the time spent on 10/5/01, entitled "Dawn Nelson Depo, Rev. Record," from 5 hours to 2 hours. Similarly, the court will reduce the time spent on 10/21/01, entitled "Depo Prep rec review," from 2.25 hours to 1.25 hours. Finally, the court will reduce the time spent on 11/13/01, entitled "Rev. Records, Depo Prep, review Frires Depo," from 4.5 hours to 2.5 hours.
With respect to duplication, the court finds one other entry troublesome. On 10/2/01, Dr. Frires spent 2.5 hours reviewing "Calvin Depo." Then, the 10/18/01 entry says, "Review protocols, Jaster and Calvin Depos." Because Dr. Frires already spent 2.5 hours reviewing the Calvin deposition, the court finds the additional review of that deposition to be excessive. Accordingly, the court will reduce the time spent on 10/18/01 from 4 hours to 2 hours.
Finally, counsel for plaintiffs has offered to omit the time Dr. Frires spent with plaintiffs' counsel preparing for his deposition, which was approximately 4.5 hours. Therefore, the court reduces the total time spent by Dr. Frires by 4.5 hours. Subtracting the number of hours the court deemed excessive, the court finds that defendant is responsible for payment of 17.5 hours of Dr. Frires's deposition preparation time. At $350.00 per hour, defendant must pay $6,125.00, plus $1,912.50 for actual deposition time, which brings the total to $8,037.50. Defendants must pay this amount no later than May 15, 2002.
II. Motion to Compel Production of Documents
Defendant Paul Jaster moves the court for an order compelling the production of plaintiffs' income tax returns. Apparently, plaintiffs have not objected to producing these documents. Rather, plaintiffs simply have failed to provide the income tax returns. Defendant Jaster states that plaintiffs' income tax returns are necessary to defendants' defense of plaintiffs' claimed economic damages in this case. The court notes that plaintiffs did not respond to this motion. Accordingly, the court orders plaintiffs to provide the requested income tax returns to defendants no later than May 15, 2002.
IT IS THEREFORE ORDERED that plaintiffs' Motion to Compel Payment of Expert Witness Deposition and Deposition Preparation Time (Doc. 117) is granted to the extent that defendants are ordered to pay $8,037.50 to plaintiffs no later than May 15, 2002. Defendant Paul Jaster, M.D.'s Motion to Compel Production of Documents (Doc. 128) is granted. Plaintiff is ordered to provide the requested income tax returns to defendants no later than May 15, 2002.