Jones v. National Railroad Passenger Corporation

Background

Amanda Jones sued National Railroad Passenger Corporation and other defendants after she fell from her mobility device scooter while riding a bus operated by the defendants. The opinion says she alleged negligence and violations of the Americans with Disabilities Act and other civil-rights laws. At the time of this order, the only remaining claim was negligence.

The defendants hired Dr. Jonathan Nassos, an orthopedic surgeon, to examine Jones and disclosed him as an expert witness. They disclosed that his testimony rate was $1,050 per hour. After the parties agreed to take his deposition, Dr. Nassos requested $2,100 for two hours. Jones’s counsel proposed $1,200 instead. The defendants said the deposition would be canceled unless Jones prepaid the $2,100 fee. Jones filed a motion asking the court to set a reasonable fee at $600 per hour. The deposition nevertheless occurred as scheduled on March 15, 2022, and lasted from noon until 2:03 p.m.

Legal standard

Under Federal Rule of Civil Procedure 26, the party seeking discovery from an opposing expert generally must pay the expert a reasonable fee for time spent responding to the discovery, unless doing so would cause manifest injustice. The party seeking reimbursement has the burden of showing that the requested fee is reasonable. If that party does not meet the burden, the court may determine a reasonable fee.

The court considered seven factors: the expert’s area of expertise; the education and training needed to provide the requested opinions; rates charged by comparable experts; the nature, quality, and complexity of the opinions; the fee charged to the party who hired the expert; fees the expert traditionally charges for related work; and any other factor that helps balance the interests protected by Rule 26.

Court’s analysis

The court found that Dr. Nassos’s qualifications supported the requested rate. He was a board-certified orthopedic surgeon in Los Angeles, had practiced medicine since 2005, had substantial litigation-expert experience, and had completed a fellowship in orthopedic sports medicine.

The defendants provided evidence that comparable orthopedic surgeons in the San Francisco Bay Area and Los Angeles charged between $1,000 and $1,500 per hour. The court rejected Jones’s comparison to her own expert, Dr. William Conte, who charged $600 per hour, because Dr. Conte was a neurologist based in Indiana, had practiced since 2017, and had testified only three times. The court also found that two older Colorado decisions involving lower rates did not provide a useful comparison for a Los Angeles orthopedic surgeon testifying in this district in 2022.

The court treated the complexity factor as neutral. Jones argued that the deposition would probably last less than one hour, but her counsel ultimately questioned Dr. Nassos for just over two hours. The defendants said he was prepared to testify about the nature, treatment, and resolution of injuries involving Jones’s knee, hip, shoulder, and back. The court noted, however, that the remaining negligence claim and the general subject of the testimony did not appear especially complex.

The court also considered Dr. Nassos’s other fees. His daily trial rate was $10,500, his half-day rate was $6,300, and he charged $750 per hour for reviewing records. The court found it reasonable for an expert to charge more for a deposition by opposing counsel than for a medical or legal consultation. The court also noted that Dr. Nassos had stated during the deposition that he charged $1,500 per hour for depositions, which was more than the $1,050 rate the defendants sought.

Finally, Jones argued that, as a disabled person, she should not have to pay more because the defendants selected a doctor with high rates. The court rejected that argument, reasoning that choosing to depose the defendants’ expert was an expense associated with preparing her case, like other depositions. The court concluded that the defendants had shown that the deposition fee was reasonable.

Disposition

The court DENIED Jones’s motion to set the expert witness fee. It ORDERED Jones to pay $2,100 as a reasonable expense for Dr. Nassos’s deposition. The court also denied the defendants’ request for an additional $2,100 for two hours of preparation because that request was not presented through the procedure required for the court to decide it in this order.