Massasoit v. Carter
Massasoit v. Carter
Opinion of the Court
ORDER
Plaintiffs have filed a motion for this Court to determine the reasonable fees which defendants’ expert witness can charge for having his deposition taken. Defendants have identified their expert witness pursuant to Fed.R.Civ.P. 26(a)(2)(A) and have identified him as a retained expert for whom an expert report is necessary pursuant to Rule 26(a)(2)(B). The expert report has been supplied to plaintiffs, who now want to take the deposition of defendants’ expert. Plaintiffs complain that the expert intends to charge a $2,000.00 flat rate fee, which plaintiffs claim is unreasonable.
The starting point begins with Rule 26(b)(4)(C). It states that “[ujnless 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.” As noted by the treatise writers:
Although the rule is mandatory in the sense that the court may not entirely refuse to direct payment, it is up to the district court to determine what is a reasonable fee. The courts have deplored the paucity of authority on the subject, but have resisted efforts by experts to charge opposing parties unreasonable amounts.
8 Charles Alan Wright, Arthur R. Miller and Richard L. Marcus, Federal Practice and Procedure § 2034, at 469-470 (1994 Ed.).
In support of their motion, plaintiffs state that they have retained three expert witnesses, who charge from $75.00 per hour to $125.00 per hour. They further contend that they have only requested defendants’ expert to reserve two to three hours at his office and that the $2,000.00 flat rate fee amounts to a charge of over $600.00 an hour. From this, plaintiffs argue that not only is defendants’ expert deposition fee out of line with what other experts charge, but it is patently exorbitant.
Other courts which have dealt with this issue apply a number of factors which are helpful in resolving such disputes. As stated by the court in U.S. Energy Corp. v. NUKEM, Inc., 163 F.R.D. 344, 345-346 (D.Colo. 1995):
Although there is a paucity of decisions in the area of what constitutes a “reasonable” fee for an expert, those cases which have addressed the issue have set forth seven factors to be considered in determining whether or not a fee is reasonable: (1) the witness’s area of expertise; (2) the education and training that is required to provide the expert insight which 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 being 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 be of assistance to the court in balancing the interests implicated by Rule 26. Jochims v. Isuzu Motors, Ltd., 141 F.R.D. 493, 495 (S.D.Iowa 1992); see also Hose v. Chicago and North Western Transp. Co., 154 F.R.D. 222 (S.D.Iowa 1994); Goldwater v. Postmaster General of the United States, 136 F.R.D. 337 (D.Conn. 1991).
Defendants recognize these factors and provide some information in support of them. The case involves an allegation of use of excessive force by a law enforcement officer
Next, defendants state that this is a complex case. The Court would agree that it is an unusual case because it involves allegations of excessive force pursuant to 42 U.S.C. § 1983, wherein two United States Army soldiers were shot by a Moore County Deputy Sheriff, while they were engaged in a covert or secret training exercise (of which the deputy was apparently unaware), after the deputy made a stop of the vehicle in which the soldiers were riding. However, the issues on which the expert will render an opinion are not complex in the sense that they require significant advanced study, research, or training and experience, in the same way that would be required of a neurosurgeon, a rocket scientist, or accountant. The experts in this case will be testifying to police standards. See n.l. This is not a field with stringent entrance requirements.
Because defendants’ expert apparently consults as a living, defendants do not show the fees the expert would forego by having his deposition taken. That can be an important indicator as to whether the deposition fee is excessive. However, defendants do utilize the expert’s fee schedule to prove that there is not an unusual discrepancy in the deposition charge compared to the fees which the expert has charged defendants themselves. According to the fee schedule, the expert charges $250.00 per hour, with a $6,000.00 minimum, to review a ease. For trial testimony, he charges $250.00 per hour for preparation, and $3,000.00 a day. For depositions, he bills a flat rate of $2,000.00 per day. He charges $2,000.00 per site inspection or investigation.
Plaintiffs did not file a reply to defendants’ brief and, consequently, much of defendants’ assertions have gone unchallenged. Therefore, the Court will only focus in on the most
In the instant case, defendants have not shown a reasonable basis for the expert’s $2,000.00 flat rate fee for a deposition at his own office.
Although the Court has rejected the expert’s flat rate fee, the Court must determine what a reasonable fee would be. The place to start is by selecting an hourly fee. It appears that defendants’ expert charges $250.00 per hour as a general fee for consultation, investigation, and preparation. This is twice what plaintiffs’ experts charge. While the differential seems large, plaintiffs have not given the Court sufficient information for the Court to find that $250.00 for a “national” expert is unreasonable. Instead, plaintiffs only rely on the fees charged by their experts. It would have been helpful for plaintiffs to show the fees of experts other than their own, as defendants did. The $250.00 per hour fee amounts to $2,000.00 for an eight-hour deposition. Finally, as defendants point out in their brief, the flat rate fee does not include preparation time, which some courts find to be a reasonable inclusion. Fleming v. United States, 205 F.R.D. 188, 190 (W.D.Va. 2000). The Court-imposed $250.00 per hour fee does not include the preparation time either. Therefore, the Court will use the $250.00 figure as a base amount.
The next problem is how should the hourly fee be administered. Because depositions can be of an uncertain length, an expert may be called upon to reserve an indefinite amount of time, such as a half-day or a day. In that instance, a party may have to pay for that reservation, whether that time is used or not. This situation particularly arises when the expert, such as a physician, has had to
IT IS THEREFORE ORDERED that plaintiffs’ motion to determine a reasonable expert fee (docket no. 35) pursuant to Fed. Rule Civ. P. 26(b)(4)(C) is granted, and plaintiffs shall reserve the amount of hours for which they wish to depose defendants’ expert and pay at a rate of $250.00 per hour for each hour or part of an hour for which the deposition lasts and, in no event, less than $250.00 for the amount of time reserved.
. The Court takes time out to express its concerns that both sets of experts appear to wish to give an opinion on the ultimate question reserved for the jury by stating that they can say what a reasonable objective officer would have done based on their, i.e., the experts, review of exhibits. The expert's primary function in a case, such as the instant one which involves an allegation of excessive force on the part of a law enforcement officer, is to testify concerning police standards. Kopf v. Skyrm, 993 F.2d 374, 378 (4th Cir. 1993). Yet, there is no blanket rule as to whether an expert's opinion will or will not be allowed. Id. at 379. There will more likely be a need for an expert if special tools, such as guns, mace, dogs, etc., were used. Id. On the other hand, if a plaintiff’s actions are indisputably dangerous, there may be no place for an expert, even when a gun is involved. Pena v. Leombruni, 200 F.3d 1031 (7th Cir. 1999), cert. denied, 530 U.S. 1208, 120 S.Ct. 2207, 147 L.Ed.2d 240 (2000). Ultimate opinions would appear to be disfavored, United States v. Schatzle, 901 F.2d 252 (2d Cir. 1990); McCloughan v. City of Springfield, 208 F.R.D. 236 (D.C.Ill. 2002) (the expert in that case is defendants' expert in this case); Burger v. Mays, 176 F.R.D. 153 (E.D.Pa. 1997), although, in rare instances and unique cases, expressions of opinion that approach an ultimate opinion in phrasing may be allowed, United States v. Mohr, 318 F.3d 613 (4th Cir. 2003) (rebuttal). However, the attempted use of experts to give their particular interpretation of contested facts so as to offer an opinion on reasonableness is not proper. Clem v. Corbeau, 98 Fed.Appx. 197 (4th Cir. 2004). In fact, when the only issue is over which set of contested facts to believe, an expert is not needed at all. Jackson v. Harsch, 116 F.3d 465 (2d Cir. 1997)(Table).
. It is not clear that being an international or national expert should be a basis for allowing a larger fee. Both plaintiffs and defendants will have to show the standard applicable to a Moore County, North Carolina, deputy. They will not likely be giving an opinion on the reasonableness of the deputy's actions. See n. 1.
. The Court notes that defendants' expert charges $3,000.00 per day when the location for the deposition is chosen by counsel. Such a fee has a better chance of being found reasonable because there, the expert may have to reserve an entire day, considering travel time, etc.
. The Court has a duty to do more than merely determine what the traffic will bear. Rather, it must determine reasonable fees. Jochims v. Isuzu Motors, Ltd., 141 F.R.D. 493, 497 (S.D.Iowa 1992).
Reference
- Full Case Name
- Cody Hastings MASSASOIT, as for Tallas Hastings Tomeny and Stephen Phelps v. Sheriff Lane CARTER, in his official capacity, Deputy Randall Butler, in his official capacity, Moore County Sheriff's Department
- Cited By
- 18 cases
- Status
- Published