Opinion
No. 2:99-CV-1301
May 7, 2001
OPINION AND ORDER
Plaintiff in this diversity action seeks recovery of underinsured motorist benefits in connection with injuries allegedly sustained by her in a motor vehicle accident. In November 1999, William Hennessey, M.D., a specialist in physical medicine and rehabilitation, Curriculum Vitae of William Hennessey, attached to Defendant's Expert Disclosure, performed a medical evaluation of the plaintiff at the request of the defendant. Plaintiff noticed Dr. Hennessey's deposition for December 18, 2000. Notice off Deposition Duces Tecum (December 4, 2000). This matter is now before the Court on plaintiff's January 10, 2001 motion to fix an expert fee in connection with her deposition of Dr. Hennessey. Defendant has filed a memorandum contra the motion.
Apparently, Dr. Hennessey advised plaintiff's counsel, subsequent to the notice of deposition but before the date of the deposition, that he regularly charges "$1200.00 fee. Prepayment is required." Billing Invoice, attached to Memorandum in Support of Motion to Fix Expert Fee. The fee schedule indicates that Dr. Hennessey's fee is "$1200.00 per hour for oral deposition, . . ." Although he also charges a fee of "$1500.00 for one half-day of live testimony." Id. The $1200 fee must be prepaid. Half of the fee will be forfeited if the deposition is cancelled or rescheduled on less than two weeks' notice; all of the fee will be forfeited if the deposition is cancelled or rescheduled on less than one week's notice. Id. Contending that these terms are unreasonable and excessive, plaintiff asks that this Court fix an appropriate fee for Dr. Hennessey's deposition.
Rule 26(b)(4)(C) of the Federal Rules of Civil Procedure provides:
Unless 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 under this subdivision; and (ii) with respect to discovery obtained under subdivision (b)(4)(B) of this rule the court shall require the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert.
A party seeking discovery of an opponent's expert witness must pay that expert a reasonable fee unless manifest injustice would result. United States v. Twin Falls, 806 F.2d 862 (9th Cir. 1986), cert. denied, 482 U.S. 914 (1987); Goldwater v. Postmaster General off the United States, 136 F.R.D. 337, 339 (D. Conn. 1991). What fee is reasonable falls within the discretion of the Court. Jochins v. Isuzu Motors Ltd., 141 F.R.D. 493, 495 (S.C. Iowa 1992); Hurst v. United States, 123 F.R.D. 319, 321 (D.S.D. 1988). "Certainly, a reasonable fee would include compensation for the expert's time during a deposition." 6 Moore's Federal Practice § 26.80[3] (Matthew Bender 3rd Ed.). In determining an appropriate fee, a court should consider the education and expertise of the expert, the prevailing rates for similar experts and the complexity of the information sought. Id.
Plaintiff does not dispute Dr. Hennessey's qualifications. Both parties refer, but without any evidentiary support whatsoever, to fees charged by other assertedly comparable professionals. They apparently agree that plaintiff's own treating physician charges $1000.00 minimum for the first two and one-half hours of deposition and $400.00 per hour thereafter.
In this context, Dr. Hennessey's fee appears to be only somewhat excessive. The Court rejects, as remote both in time and place, plaintiff's suggested rate of $250.00 per hour, as established more than one year ago by the Court of Common Pleas for Tuscarawas County, Ohio. The Court will authorize a fee of $1200.00 for a deposition of Dr. Hennessey lasting up to two and one-half hours. Thereafter, Dr. Hennessey may charge a fee of $600.00 per hour. Furthermore, the Court concludes that Dr. Hennessey's cancellation fees are not unreasonable.
IT IS SO ORDERED.