United States District Court, M.D. Louisiana
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE.
the Court is Defendant's Motion to Set Plaintiff's
Expert Fee (R. Doc. 12) filed on August 28, 2017. Defendant
seeks an order setting the fee to be paid to Plaintiff's
expert witness, Dr. Jon Olson, at his deposition set for
October 3, 2017. The motion is opposed. (R. Doc. 15).
November 28, 2018, Kenya Spencer-Martin
(“Plaintiff”), who has epilepsy, commenced this
action, alleging that she was terminated by her former
employer, Exxon Mobile Corporation (“Defendant”),
in violation of the Americans with Disabilities Act, 42
U.S.C. § 12101 et seq. (R. Doc. 1). Plaintiff
alleges that she has been treating with Dr. Olson, a
neurologist, since 2001 with regard to her disability. (R.
Doc. 1 at 2). Plaintiff further alleges that she had a
seizure while at work on April 18, 2015, and was terminated
just over one month after Dr. Olson released her back to work
on October 19, 2015. (R. Doc. 1 at 2-3).
has designated Dr. Olson as an expert witness. (R. Doc.
15-2). According to his curriculum vitae, Dr. Olson obtained
his medical degree in 1993, completed a residency in
neurology and a fellowship in neuro-oncology, and is board
certified in psychiatry and neurology. (R. Doc. 15-2 at 4-5).
Dr. Olson provided Defendant a declaration stating that he
charges “$1, 800 per hour for testimony.” (R.
Doc. 15-2 at 3). Defendant noticed the deposition of Dr.
Olson to take place on October 3, 2017. (R. Doc. 15-1).
Defendant asserts that after scheduling the deposition, Dr.
Olson provided notice that he will require payment of $1, 800
per hour to give his deposition. (R. Doc. 12-1 at 2-3).
the instant motion, Defendant seeks an order setting Dr.
Olson's hourly deposition rate at $500, the same rate
charged by Defendant's expert neurologist, Dr. Leonard
Hershkowitz. (R. Doc. 12-1 at 5). Defendant asserts that Dr.
Hershkowitz earned his medical degree in 1970, completed a
residency in neurology and a fellowship in
neuro-ophthalmology, and, like Dr. Olson, is board certified
in psychiatry and neurology. (R. Doc. 12-1 at 5). Defendant
argues that the $1, 800 per hour rate sought by Dr. Olson is
exorbitant and should be reduced to the $500 per hour rate
charged by Dr. Hershkowitz. (R. Doc. 12-1 a 3-5).
opposition, Plaintiff argues that that Dr. Olson's fee is
reasonable as it is the same rate charged by the nine
neurologists employed at Dr. Olson's place of employment,
The NeuroMedical Center. (R. Doc. 15 at 2). Plaintiff submits
an affidavit by The NeuroMedical Center's Controller
stating that the services fees charged by The NeuroMedical
Center “are customary for physicians of the same
medical specialty practicing in the community.” (R.
Doc. 15-3). Attached to the affidavit is a list of The
NeuroMedical Center's “Service Fees” related
to litigation, which indicates that its physician's
standard deposition fee is $1, 800 per hour with the
annotation “pre-collect.” (R. Doc. 15-3 at 2).
Law and Analysis
party may depose any person who has been identified as an
expert whose opinions may be presented at trial.”
Fed.R.Civ.P. 26(b)(4)(A). “Unless manifest injustice
would result, the court must require that the party seeking
discovery” from an expert to “pay the expert a
reasonable fee for time spent in responding to discovery
under Rule 26(b)(4)(A).” Fed.R.Civ.P. 26(b)(4)(E)(i).
party seeking reimbursement bears the burden of proving the
reasonableness of the fees.” Terrebonne Par. Branch
NAACP v. Jindal, No. 14-69, 2015 WL 9463164, at *1 (M.D.
La. Dec. 28, 2015). “Factors considered in assessing
the reasonableness of an expert's fee include: (1) the
witness's area of expertise; (2) the education and
training required to provide the expert insight that is
sought; (3) the prevailing rates of other comparably
respected available experts; (4) the nature, quality, and
complexity of the discovery responses provided; (5) the fee
actually charged to the party who retained the expert; (6)
fees traditionally charged by the expert on related matters;
and (7) any other factor likely to assist the court in
balancing the interests implicated by Rule 26.”
Id. (citations omitted).
deposition of Dr. Olson is not set to take place until
October 3, 2017. Defendant's obligations to pay a
“reasonable” amount “for time spent in
responding to discovery” only becomes due after Dr.
Olson prepares for and attends his deposition. Fed.R.Civ.P.
26(b)(4)(E)(i); see Krantz v. State Farm Fire and
Casualty Company, No. 16-mc-7248, ECF No. 7 (E.D. La.
June 8, 2016) (emphasizing that expert fees are only paid for
time spent “in responding” to discovery, and
stating that requiring up-front payments “without
reference to time actually spent in responding to discovery
is contrary to the law”); Kramer v. Hartford Ins.
Co. of the Midwest, No. 812-1824, 2013 WL 12155927, at
*1 (M.D. Fla. Apr. 30, 2013) (“The Court finds that
prepayment of expert witness fees . . . is inappropriate
under the Federal Rules of Civil Procedure.”) (citing
cases); see also Nnodimele v. City of New York, No.
13-3461, 2015 WL 4461008, at *1 n.1 (E.D.N.Y. July 21, 2015)
(adjudicating the issue of reasonableness of expert's
deposition fees, but noting that the court denied previous
motion to set fee “without prejudice, as premature,
adding that, to the extent the parties were unable to reach
agreement following [the expert's] deposition, either
party could move for judicial resolution of the fee
issue” and that “[u]nfortunately, the parties
were unable to resolve the dispute on their own.”).
Dr. Olson has not yet responded to any discovery, the
determination of the reasonableness of his fees at this time
would be premature. Indeed, the factors to be considered in
determining the “reasonableness of the charged expert
fees” includes “the nature, quality, and
complexity of the discovery responses provided.”
Terrebonne Par. Branch NAACP, 2015 WL 9463164, at
*1. In the absence of an actual record of preparation time
and deposition testimony, the Court cannot determine
“the nature, quality, and complexity” of Dr.
Olson's discovery responses. Plaintiff herself can only
speculate at this time “that the quality of the
testimony [to be provided by Dr. Olson] will be high.”
(R. Doc. 15 at 3).
the Court has reviewed various decisions setting the
“reasonable fee” for deposition preparation and
testimony provided by neurologists and related physicians.
These courts have reached a wide-range of conclusions based
on fact specific inquiries. See, e.g.,
Whalen v. CSX Transportation, Inc., No. 13-3784,
2017 WL 374737 (S.D.N.Y. Jan. 26, 2017) (setting hourly rate
for deposition and deposition preparation time of expert
neurosurgeon at $500 per hour); Walker v. Spike's
Tactical, LLC, No. 13-1923, 2015 WL 70812, at *4 (D.
Nev. Jan. 5, 2015) (setting hourly rate for deposition of
expert neurologist at $1, 500 per hour where the neurologist
had particularly “impressive credentials” and
neither party “provided the court with evidence of the
prevailing rates of other comparable, respected, available
experts in [the] area”); Reit v. Post Properties,
Inc., No. 09-5455, 2010 WL 4537044, at *6-11 (S.D.N.Y.
Nov. 4, 2010) (setting hourly rate for deposition and
deposition preparation time of expert neurologist at $400 per
hour); Barnes v. Hickox, No. 08-938, 2009 WL
10670584 (M.D. Fl. Oct. 13, 2009) (setting hourly rate for
deposition of expert neurologist at $975 per hour where
opposing expert charged that amount); Marin v. United
States, No. 06-552, 2008 WL 5351935 (S.D.N.Y. Dec. 22,
2008) (setting hourly rate for deposition of expert
neuroradiologist and neurologist at $550 per hour and hourly
rate for deposition preparation at $400 per hour); Grady
v. Jefferson County Board of County
Commissioners, 249 F.R.D. 657 (D. Colo. 2008) (setting
hourly rate for neurological surgeon at $600 per hour);
Hose v. Chicago and North Western Transp. Co., 154
F.R.D. 222 (S.D. Iowa 1994) (setting hourly rate for
deposition of expert neurologist at $400 per hour and hourly
rate for deposition preparation at $160 per hour).
the record, and the fact-specific inquiry with regard to
setting the reasonableness of Dr. Olson's fees, which
have not yet been incurred, the Court will defer ruling on
the issue of the reasonableness of Dr. Olson's fees. The
parties and Dr. Olson are encouraged to resolve the foregoing
issue without further court intervention. If necessary,
however, Plaintiff and/or Dr. Olson may move this Court to
require Defendant to pay Dr. Olson “a reasonable fee
for time spent in responding to discovery under Rule
26(b)(4)(A).” Fed.R.Civ.P. 26(b)(4)(E)(i). Any ...