Opinion
No. TTD CV 06-5000587-S
March 6, 2009
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR DETERMINATION OF REASONABLE EXPERT FEES
This case is an action by the plaintiff, Freida Mann, alleging that she fell down an interior step while entering Albert's Beauty Salon, a shop located on Main Street in Willimantic, CT. The defendants are alleged to be responsible for the defective premises. Defendants deposed plaintiff's slip and fall expert, Stephen I. Rosen, PhD, in advance of trial. That deposition was held in October 2008. It took five hours. Subsequently, the plaintiff presented defendants with Dr. Rosen's bill pursuant to Practice Book § 13-4. That Practice Book rule generally requires the party taking the deposition of an expert to pay a "reasonable fee" for the expert's time. Dr. Rosen charged $495 per hour for a total of $2,475. Defendants complain that the rate is excessive, and ask the court for a determination as to what would be a "reasonable fee" allowed by the Practice Book. For the following reasons, the court concludes that the rate is excessive, and determines that a reasonable fee is $285 per hour for a total of $1,425. That amount shall be paid by the defendants within 30 days of the issuance of this decision.
The pertinent practice book rule applicable here was substantially revised, effective January 1, 2009. Conn. L.J., Vol 70, No. 4, pp. 77B-84B (July 22, 2008). The deposition was conducted in October 2008. Whether the new Practice Book rule applies to a deposition conducted prior to the effective date of the rule change calls on the court to test whether the rule is procedural or substantive, and whether the rule change should be applied retrospectively or not in a case that was pending at the time of the change. See State v. Ross, 230 Conn. 183, 282, 646 A.2d 1318 (1994); Robben v. Hartford Elec. Light Co., 1 Conn.App. 109, 117-18, 468 A.2d 1226 (1983). Testing whether a rule is procedural or substantive is often a "vexing question." Paine Webber Jackson and Curtis, Inc. v. Winters, 22 Conn.App. 640, 650, 579 A.2d 545, cert. denied 216 Conn. 820, 581 A.2d 1055 (1990). In the instant case, it is unnecessary to resolve that question because the particular requirement — allowance of a "reasonable fee" for an expert's time spent in deposition — is a requirement in both versions of the Practice Book rule.
Dr. Rosen's bill has been paid in full. The parties agreed that his bill would be paid by the plaintiff, but they could not agree on how much defendants should reimburse plaintiff for the bill as defendants felt that Dr. Rosen's hourly rate was excessive. They agreed to submit the reimbursement issue to the court for resolution. The decision on the pending motion resolves that issue.
I
While the Practice Book generally requires the party taking a deposition of an expert to pay a "reasonable fee" for that expert's time, no Connecticut appellate court authority gives guidance as to how a court should determine whether such a fee is "reasonable." However, an often-cited Superior Court case on point is Rose v. Jolly, 48 Conn.Sup. 606, 607, 854 A.2d 824 (2004) [ 37 Conn. L. Rptr. 495]. That case adopts the criteria applied by a federal court in the case of Fisher-Price, Inc. v. Safety 1st, Inc., 217 F.R.D. 329, 333 (D.Del. 2003) concerning a similar requirement in Rule 26(b)(4)(C), Fed.R.Civ.P. Both sides in the instant case cite to that criteria approvingly and as a fair test, and the court agrees to use that test as a guide. That test provides as follows:
By comparison, our Supreme Court has provided guidance as to awarding "reasonable attorneys fees:" "[T]o support an award of attorneys fees there must be a clearly stated and described factual predicate for the fees sought, apart from the trial court's general knowledge of what constitutes a reasonable fee. Although we have been careful not to limit the contours of what particular factual showing may suffice, our case law demonstrates that a threshold evidentiary showing is a prerequisite to an award of attorneys fees." (Footnote omitted.) Smith v. Snyder, 267 Conn. 456, 477, 839 A.2d 589 (2004). "Accordingly, when a court is presented with a claim for attorneys fees, the proponent must present to the court at the time of trial or, in the case of a default judgment, at the hearing in damages, a statement of the fees requested and a description of services rendered." (Footnote omitted.) Id., 470. "Our holding today does not limit the trial court's ability to assess the reasonableness of the fees requested using any number of factors, including its general knowledge of the case, sworn affidavits or other testimony, itemized bills, and the like . . . [t]he value [of reasonable attorneys fees] is based upon many considerations." (Internal quotation marks omitted; citations omitted.) Id., 480.
CT Page 4483
In determining whether a fee request . . . is reasonable . . . courts consider [the following] criteria: (1) The witness's area of expertise; (2) the education and training required to provide the expert insight that is sought; (3) the prevailing rates of other comparably respected available experts; (4) the nature, quality, and complexity of the discovery responses provided; (5) the fee actually charged to the party who retained the expert; (6) fees traditionally charged by the expert on related matters; and (7) any other factor likely to assist the court in balancing the interest implicated . . . Ultimately, however, it is in the court's discretion to set an amount that it deems reasonable. (Citations omitted; internal quotation marks omitted.) Fisher-Price Inc. v. Safety 1st, Inc., 217 F.R.D. 329, 333 (D.Del. 2003).
Rose v. Jolly, supra, 48 Conn.Sup. 607.
II
The facts in this matter show that the witness is an expert in slip and falls. His resume establishes that he has a background in civil engineering with specific academic study and professional experience in biomechanics and premises safety. He has written two handbooks entitled, "The Slip and Fall Handbook" and "The Duty to Warn Handbook." He has worked on over 6,000 accident cases and he has been qualified as an expert witness in approximately 37 states. He has testified in court over 400 times. He is a retired college professor who was Vice-Provost at the University of Maryland. He apparently now works out of his home in mid-town Manhattan. Thus, the expert has certainly established his qualification to testify as an expert on the subject of slip and falls. The training and experience he has acquired is typical of that of a civil engineer and the usual slip and fall expert; however, he has distinguished himself with advanced degrees, publishing efforts and professional activities, and he has experience in testifying in a nationwide practice.
With regard to prevailing rates, the defendants supply the court with an affidavit of William Bayer, a structural engineer with the firm of Kahn and Bayer in Manchester, Connecticut, testifying that the generally acceptable rates in "this community" for engineering consulting, including the type in the case at hand, is within the $150 to $250 per hour range. This coincides with the court's familiarity with rates charged by such experts in the Central Connecticut area in slip and fall cases. Thus, it is established that Dr. Rosen is charging well in excess of that typically charged by experts in this area for testifying in a slip and fall case. The court was not provided with any information as to whether the rates are higher in mid-town Manhattan, although that would be a fair assumption as costs are typically much higher in such world centers. However, that factor is offset by the economies of the home-office.
As for the nature, quality and complexity of the discovery responses, the parties agree that there was nothing exceptional about this case or the expert's work product in this matter. The long time in deposition was attributed to the perceived high stakes involved as the plaintiff is claiming significant injuries. Thus, the witness's contribution was not especially unusual; nevertheless, the expert's testimony was very important to all.
Dr. Rosen is charging his client — the plaintiff — a flat fee of $2,850 for his investigation and report, plus $495 per hour for any time testifying. Dr. Rosen is not charging defendants for preparation or travel time. His $495 fee is for time testifying only, and his rate is the same whether he testifies in Manhattan or Rockville. By comparison, Mr. Bayer — defendants' expert — is charging his client $175 per hour.
Plaintiff has paid Dr. Rosen in full for his travel time and preparation time for the deposition and plaintiff is not asking the defendants to reimburse those costs.
The court has no information as to Dr. Rosen's fee rate history.
Considering all of the above, the court concludes that Dr. Rosen's fee in this case of $495 per hour for testifying in this slip and fall case is not reasonable. It is excessive. However, there are factors justifying a rate higher than normal, particularly considering Dr. Rosen's extraordinary credentials and potential gravitas. The court finds that a reasonable rate is $285 per hour for a total of $1,425.00. That amount shall be paid by the defendants within 30 days of the issuance of this decision.
III
For all of the foregoing reasons, the court concludes that a reasonable fee for plaintiff's expert is $285 per hour for a total of $1,425.00. That amount shall be paid by the defendants within 30 days of the issuance of this decision.