There is often a dispute between the parties as to the fee charged by the opposing expert for a discovery deposition, which must be paid by the party requesting the deposition. Specialists sometimes charge exorbitant flat fee rates and counsel argue over which party must pay that fee. In a recently published Law Division decision, just approved for publication on August 26, 2015, Jusino v. Lapenta, 2014 N.J. Super. LEXIS 192 (Law Div. May 23, 2014), Judge Savio (Atlantic County) refused to require the defendant to pay the flat fee charged by the plaintiff’s neurosurgeon for his discovery deposition.
In Jusino, the defendant noticed the discovery deposition of the plaintiff’s expert, Dr. Andrew Glass, a board certified Neurological Surgeon, and inquired as to his fee schedule. The plaintiff responded that Dr. Glass’s current fee for attending a discovery deposition was $1000/hour with a 3 hour minimum fee of $3000, as well as a $500 preparation fee and if there were excessive medical records to review, excessive time requirement fees may apply.
The defendant refused to pay for any of the preparation time and protested the amount of the attendance fee. Defendant suggested that a reasonable fee should be between $300 to $400/hour. When the plaintiff refused to produce Dr. Glass unless the defendant agreed to pay Dr. Glass his proposed attendance fee in advance of the deposition, the defendant moved to have the court set the fee for him to attend.
Judge Savio pointed out that there was no published or unpublished opinion in the New Jersey Supreme Court or Appellate Division defining the term “reasonable fee” as the words are used in the civil rules governing expert depositions. The only reported decision was a 30 year old Law Division decision that found that $200/hour was a reasonable fee to pay a physician to be deposed.
The court rejected the plaintiff’s suggestion that the defendant be required to pay Dr. Glass to prepare for his deposition. Judge Savio found that it was the plaintiff’s responsibility to pay for his preparation.
The plaintiff argued that the court should consider the fee schedules of 3 other neurosurgeons in the Southern New Jersey region in setting a reasonable fee for Dr. Glass. These other physicians charged even more than Dr. Glass for their depositions. Regardless, Judge Savio found that the issue was not how much money the expert charges for the deposition or what a majority of similarly credentialed experts charged but what is a reasonable amount of money for an opponent to pay the expert for attending a deposition.
The court determined that the plaintiff had not met her burden that Dr. Glass’s flat fee of $3000 was reasonable. Judge Savio assumed that Dr. Glass would generate at least $750/hour while performing services as a neurosurgeon. Hence, the court ordered that the defendant pay $750 for the first hour and an additional $750 for each hour or portion of each hour of his deposition after the first hour. The court denied the request for a prepayment fee.
The upshot of this ruling is that the plaintiff (or whomever is the party producing the expert) would responsible to front any prepayment and to pay the balance between the fee charged by the expert and the amount to be paid by the opposing party. It is not clear, however, how the court arrived at the rate of $750/hour to be generated by a neurosurgeon in his daily practice. Nevertheless, this case may provide guidance in future disputes over the payment of expert fees for a discovery deposition.
