deposition

Both federal and state courts in New Jersey require that the fee charged by an expert for a deposition be paid by the party requesting the deposition.  Hence, if a defendant wishes to take the deposition of plaintiff’s expert, the defendant would be required to pay that expert’s reasonable fee.  However, often an issue arises as to what would be a “reasonable” fee.  The issue in the federal case of Salmon v. Lewis, 2025 U.S. Dist. LEXIS 260053 (D.N.J. Dec. 16, 2025) was whether the defendants would be required to pay the flat fee of $12,000 for a full day deposition of plaintiff’s expert, Dr. Roman Shulkin, an anesthesiologist.  Additionally, there was an issue as to whether the fee of the plaintiff’s orthopedic surgeon, who demanded $1,250 per hour, equating to $10,000 for a full day deposition, was a reasonable fee. 

This case involved personal injuries resulting from a motor vehicle accident.  Plaintiff was driving a truck within the scope of his employment when a collision occurred with the defendant Roger Lewis, also operating a truck within the scope of his employment.  Plaintiff alleged that Lewis was negligent, resulting in a collision with his vehicle, and sued Lewis and his employer.   As a result of the accident, plaintiff claimed to have suffered severe and permanent injuries.

In discovery, plaintiff identified both Dr. Roman Shulkin, an anesthesiologist, and Dr. Howard Baum, an orthopedic surgeon, as his experts.  The defendants reached out to plaintiff to schedule the deposition of both experts and asked as to their fees for appearing at the deposition.

Dr. Shulkin demanded a fee of $12,000 for a full day of testimony or $8,000 for a half day of testimony but did not provide an hourly fee.  The defendants filed a motion with the court to set a reasonable fee for Dr. Shulkin and asked the court to set the fee at $450 an hour, which the defendants argued was a reasonable fee for an anesthesiologist.

As for Dr. Baum, he demanded a fee of $1,250 per hour to appear for his deposition, which would equate to about $10,000 for a full day deposition.  The defendants filed another motion to set a reasonable expert fee for Dr. Baum, again asking the court to set the fee at $450 per hour, which defendants claimed was the prevailing rate for orthopedic surgeons to testify at a deposition. 

In response to the motions, the Court noted that the federal court rules required that the expert be paid a “reasonable” fee for time spent in responding to discovery.  Moreover, the party taking the expert’s deposition would bear the cost charged by the expert for the testimony.  However, the party seeking reimbursement of their expert’s fee would bear the burden of showing that the requested fees and costs are reasonable.

Thus, the Court had to determine the reasonableness of fees owed by the deposing party and must adjust fees that are deemed unreasonable.

In this matter, the defendants did not object to paying a fee for the depositions of plaintiff’s experts.  They merely disputed the amount of that fee.  Thus, the only issue before the Court was the reasonableness of both of the doctor’s respective fees.  The Court noted that it had virtually no information before it to determine what constituted a reasonable fee.

The defendants’ argument that the reasonable fee should be $450 per hour was made with no support for this conclusory statement, making it impossible for the Court to evaluate the factors courts would normally consider when setting expert fees.  The defendants failed to provide any comparative data concerning fees charged by similarly-situated doctors in other cases.  The only useful information that the defendants provided to the court in a footnote was where defendants cited to U.S. Bureau of Labor Statistics data for the mean annual income for an anesthesiologist. 

Similarly, the defendants provided no evidence or data to support their contention that the prevailing rate for an orthopedist’s deposition should be $450 per hour.  Again, the only information provided was the U.S. Bureau of Labor Statistics mean annual income for an orthopedic surgeon. 

However, the Court pointed out that the plaintiff carries the burden of demonstrating the reasonableness of his experts’ demanded fees.  Plaintiff did not oppose either motion or provide the Court with any information that might explain why both of these doctors’ fees were reasonable.  Plaintiff did not even provide the Court with the experts’ curriculum vitae.

Because the Court was provided no information about either doctors’ training, education, experience or the complexity of their anticipated deposition testimony, the anticipated length of their deposition, the fees being charged to plaintiff, or the fees defendants were paying for a similarly situated experts, the Court was left to use its own discretion to determine a reasonable expert fee.  The Court conducted research with courts around the country and concluded that the reasonable deposition fee for an orthopedic surgeon varied from $400 per hour to over $1,500 per hour.  The Court located only one case addressing the reasonable deposition fee for an anesthesiologist who set the fee at $600 per hour.

Due to the scant evidence before it, and the complete silence from plaintiff on this issue, the Court determined that $850 per hour was a reasonable hourly rate for the orthopedic surgeon, Dr. Baum.  It set that fee as a midpoint between the demanded fee of $1,250 and the $450 rate defendants proposed.  It also was roughly a midpoint for deposition fees set around the country for orthopedic surgeons, with a slightly higher rate to account for inflation and the generally higher rates charged in this geographic area.

As for Dr. Shulkin, the anesthesiologist, although no hourly rate was provided, but based upon his flat fee demands, the Court concluded that his actual rate was $2,000 for the first four hours and $1,500 for the remaining four hours.  In setting a reasonable hourly rate, the only case the Court discovered from its own research set the expert fee for an anesthesiologist at $600 per hour.  However, the Court noted that this case was 15 years old and emanated from the Northern District of Indiana.  Due to the passage of time and accounting for the historically higher rates charged in this area, the court also set a reasonable expert fee for Dr. Shulkin at $850 per hour.

Finally, the Court noted that should either doctor insist on being paid their demanded fees to sit for a deposition, then plaintiff must pay the excess amount between the rate set by the Court and the rate demanded by the doctor. 

This case is instructive for setting the reasonable fee of an expert.  Note that in this case, the plaintiff did not submit any response to these motions and, hence, was stuck with the court’s ruling.  If the plaintiff’s experts do not accept the fee set by the court, then the plaintiff will be stuck paying the balance of the fee, which could be substantial.  On the other hand, the defendants could have provided better data to justify their requested fee of $450 per hour.  Without providing any data, the defendants are now stuck paying almost twice what they suggested was a reasonable fee for deposing plaintiff’s experts.