Addison v. Gordon
- Stewart Aaron
- 1:20-cv-07603
- U.S. District Court · Southern District of New York
- 4
In Addison v. Gordon, Judge Aaron set an orthopedic expert’s deposition rate at $500 per hour and rejected a flat half-day charge.
The ruling determines how much the defendants must pay plaintiffs’ orthopedic expert, Dr. Joshua Auerbach, for deposition-related work and extends the expert-discovery deadline for the parties.
What happened
Addison v. Gordon involved a motor-vehicle accident in which Frederick Addison allegedly suffered injuries. The plaintiffs hired Dr. Joshua Auerbach, Frederick Addison’s treating orthopedic surgeon, as an expert witness.
The defendants asked the court to limit Dr. Auerbach’s fee to $400 per hour. The plaintiffs asked the court to approve his requested total fee of $7,250, which included two hours of record review and a $6,250 flat fee for half a day of testimony. Federal rules require the party seeking expert discovery to pay a reasonable fee for the expert’s time responding to discovery.
Judge Stewart D. Aaron set Dr. Auerbach’s rate at $500 per hour for his deposition and two hours of preparation. The court did not require the defendants to pay the $6,250 flat half-day testimony fee, extended the expert-discovery deadline to September 30, 2021, and terminated both motions.
The detailed version
- Addison v. Gordon · No. 1:20-cv-07603
- Stewart Aaron
- June 30, 2021
Background
The case arose from a motor-vehicle accident in the Bronx, New York. Frederick Addison allegedly suffered injuries. Plaintiffs Frederick Addison and Winston Addison retained Dr. Joshua Auerbach, Frederick Addison’s treating orthopedic surgeon, as an expert witness. The opinion identifies Dr. Auerbach as Chief of Spine Surgery at Bronx Lebanon Hospital and describes his education, training, and experience in spinal surgery.
Dr. Auerbach submitted an invoice charging $1,000 for two hours of record review and $6,250 as a flat half-day testimony fee, for a total of $7,250. The defendants objected to the total and asked the court to limit his compensation to $400 per hour. The plaintiffs asked the court to approve the requested $7,250 fee.
Legal standard
Federal Rule of Civil Procedure 26(b)(4)(E)(i) generally requires the party seeking discovery from an expert witness to pay a reasonable fee for the expert’s time responding to discovery. The court considered factors including the expert’s field, education and training, comparable experts’ rates, the nature and complexity of the discovery, 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 rate is reasonable. The court explained that an expert may not unilaterally impose a flat fee unrelated to the time actually spent on deposition-related work and then require the opposing party to pay it under Rule 26.
Ruling
The court exercised its discretion to set Dr. Auerbach’s reasonable rate at $500 per hour, relying among other things on his expertise, education, training, and rates. It did not require the defendants to pay the $6,250 flat half-day testimony fee.
The court ordered that Dr. Auerbach be compensated at $500 per hour for his deposition and for two hours of preparation. It extended the deadline for completing expert discovery to September 30, 2021, and directed the Clerk of Court to terminate the motions at ECF Nos. 28 and 30.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.