Ey v. Sam's East, Inc.

Background

The case was tried in January 2020, and the jury returned a verdict for Sam’s East, Inc. on January 8, 2020. The parties then filed a stipulation stating that the matter was “discontinued with prejudice and without costs to either party as against the other.”

The remaining dispute concerned payment for the deposition of Dr. Harvey Seigel, the plaintiff’s expert physician. The deposition occurred on July 22, 2019, lasted about one and a half hours, and involved local travel. Dr. Seigel had requested a $7,500 flat fee based on his usual fee schedule. The defendant had offered $2,000, which it described as $400 per hour for five hours.

Applicable Rule

Federal Rule of Civil Procedure 26(b)(4)(E) requires the party taking an expert’s deposition to pay the expert a reasonable fee for time spent responding to the discovery. Courts may consider the expert’s field, education and training, comparable rates, the nature and complexity of the work, the fee charged to the retaining party, and the expert’s customary fees. The party seeking reimbursement bears the burden of showing that the requested amount is reasonable.

Court’s Analysis

The Court declined to enforce Dr. Seigel’s $7,500 flat fee because it was not related to the time he actually spent preparing for, traveling to, or attending the deposition. The Court explained that an expert may not unilaterally impose a flat fee unrelated to the services performed and obtain judicial enforcement of that amount.

The Court also rejected the defendant’s argument that the stipulation ending the lawsuit eliminated its obligation to pay the expert. Rule 26(b)(4)(E) requires payment to the expert, who was a non-party, and the stipulation did not address Dr. Seigel’s deposition fee.

The Court found that Dr. Seigel’s qualifications supported a fee appropriate for an orthopedic surgeon. The plaintiff provided no evidence of the prevailing rate for orthopedic-surgeon testimony, and the defendant relied on an older decision using a $250 hourly rate. The Court instead relied on later authority supporting a $400 hourly rate for expert witnesses in Dr. Seigel’s field.

The plaintiff provided no information about Dr. Seigel’s preparation time. In the absence of contrary information, the Court accepted the defendant’s account that the deposition lasted one and a half hours, that travel took two hours total, and that preparation took approximately the same amount of time as the deposition.

Disposition

The Court ordered the defendant to remit $2,000 to Dr. Seigel. That amount reflected $400 per hour for one and a half hours of deposition time, one and a half hours of assumed preparation time, and two hours of travel time. Because only local travel was involved, the Court did not reduce the hourly rate for travel time. Judge Paul E. Davison issued the order on May 12, 2020.