Jusino v. Lapenta

121 A.3d 936, 442 N.J. Super. 248, 2014 N.J. Super. LEXIS 192
CourtNew Jersey Superior Court Appellate Division
DecidedMay 23, 2014
StatusPublished

This text of 121 A.3d 936 (Jusino v. Lapenta) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jusino v. Lapenta, 121 A.3d 936, 442 N.J. Super. 248, 2014 N.J. Super. LEXIS 192 (N.J. Ct. App. 2014).

Opinion

SAVIO, JAMES P., J.S.C.

On October 20, 2010, plaintiff was operating a motor vehicle that was involved in an accident with a vehicle operated by defendant. [250]*250Plaintiff alleges that the defendant negligently operated his motor vehicle and that his negligence was a proximate cause of the accident. Plaintiff claims that as a proximate result of the accident, she suffered a permanent injury and she seeks compensation for her injuries from the defendant.

On October 17, 2012, plaintiff filed suit. In pretrial discovery, plaintiff named Andrew S. Glass, M.D., a Board Certified Neurological Surgeon, as an expert witness. Glass authored a number of medical reports describing the care and treatment he administered to plaintiff for the injuries he opines she suffered as a result of the accident of October 20, 2010. Glass supports plaintiffs assertion that she suffered a permanent injury proximately caused by the accident of October 20, 2010.

In accordance with Rule 4:14 — 7(b)(2), the defendant notified plaintiff of an intent to take the discovery deposition of Glass. Defendant requested plaintiff provide proposed dates for the proceeding and Glass’s fee schedule for attending a discovery deposition. In response, plaintiff indicated that Glass’s current fee for attending a discovery deposition is $1000 per hour with a minimum fee of $3000 as well as a $500 preparation fee, but “excessive medical records and excessive time requirement fees may apply.” In other words, the fee for preparation of the deposition may be $500 unless Glass determines that excessive medical records and excessive time is required to prepare for the deposition. The term “excessive” is not defined in the statement submitted by Glass.

Defendant refused to pay for any of the preparation time and protested the amount of the attendance fee charged by Glass. Defendant asserted that “Best Practices” establishes a fee schedule that suggests that the fee for taking the discovery deposition of an expert should be between $300 and $400 per hour. When plaintiff refused to produce Glass for the discovery deposition unless defendant agreed to pay Glass his proposed attendance fee [251]*251in advance of the deposition, defendant moved to have the court set the fee for Glass to attend the deposition.

Rule 4:10 — 2(d)(2) provides:

... unless otherwise ordered by the court, the party taking the deposition shall pay the ... a reasonable fee for the appearance, to be determined by the court if the parties and the expert ... cannot agree on the amount therefor. The fee for the witness’s preparation for the deposition shall, however, be paid by the proponent of the witness, unless otherwise ordered by the court.
[Rule 4:10 — 2(d)(2) (emphasis added) ].

There is no published or unpublished opinion of the New Jersey-Supreme Court or Appellate Division defining the term “reasonable fee” as the words are used in Rule 4:10 — 2(d)(2). In New Jersey, the only reported opinion addressing the term is a trial court opinion in Johnston v. Connaught Labs., 207 N.J.Super. 360, 504 A.2d 166 (Law Div.1985).

Although not controlling, the opinions of courts of coordinate jurisdiction should be taken into consideration in deciding an issue presented in this case. Acqua Development Corp. v. Twp. of Holmdel, 287 N.J.Super. 578, 584, 671 A.2d 636 (Law Div.1995); Schomber v. Prudential Ins. Co., 214 N.J.Super. 309, 313, 518 A.2d 1138 (Law Div.1986). The “decision of an inferior court is not binding on a court of coordinate jurisdiction.” Manturi v. V.J.V., Inc., 179 N.J.Super. 300, 306, 431 A.2d 859 (App.Div.1981) (citing Wolf v. Home Ins. Co., 100 N.J.Super. 27, 241 A.2d 28 (Law Div.), aff'd, 103 N.J.Super. 357, 247 A.2d 345 (App.Div.1968)). “Trial court precedent is not to be considered lightly, but in the absence of an appellate authority in New Jersey, the court is not obliged to follow it.” Lackovic v. New England Paper Tube Co., 127 N.J.Super. 394, 398, 317 A.2d 426 (Law Div.1974) (quoting Ferraro v. Ferro Trucking Co., 72 N.J.Super. 519, 523, 179 A.2d 74 (Law Div.1962)).

The opinion in Johnston was published thirty years ago. In Johnston, the expert witness was a pediatric neurologist associated with Children’s Hospital in Philadelphia who specialized in peripheral neurological disease in children. 207 N.J.Super. at 361, [252]*252504 A.2d 166. Apparently, the amount the expert charged for attending the discovery deposition was not resolved before the discovery deposition, and during the deposition the physician was asked about his fee for attending the deposition. Id. at 362, 504 A.2d 166. The expert testified that his fee to attend a discovery deposition in his office in Philadelphia was a flat fee of $750. Ibid. The defendant apparently offered to pay $200 for the one hour of time consumed in taking the deposition and the plaintiff insisted on the payment of the physician’s flat fee. Ibid. The trial court determined that $200 was a reasonable hourly rate for a discovery deposition, without providing any rationale for the conclusion. Ibid. The court ordered the plaintiff, who was the proponent of the witness, to be responsible for the payment of the difference between the expert’s $750 flat fee and the amount the court ordered the defendant’s attorney to pay the physician. Ibid. Apparently, the decision was not appealed and the opinion has never been cited in any published opinion of any court of the State of New Jersey.

This court acknowledges that the opinions of the federal court, with the exception of United States Supreme Court opinions interpreting the United States Constitution and federal statutes, are not binding precedent. In re Contest of November 8, 2011, 210 N.J. 29, 45, 40 A.3d 684 (2012). However, “federal opinions, including district court decisions, may have significant persuasive effect” Pressler & Verniero, Current N.J. Court Rules, Comment 3.5, on R. 1:36-3. The Federal Rules of Civil Procedure and the New Jersey Court Rules contain almost identical language addressing the taking of the discovery deposition of an expert witness and the issue of the fee to be paid an expert witness to attend a deposition.

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Related

Lackovic v. New England Paper Tube Co., Inc.
317 A.2d 426 (New Jersey Superior Court App Division, 1974)
Ferraro v. Ferro Trucking Co.
179 A.2d 74 (New Jersey Superior Court App Division, 1962)
Wolf v. Home Insurance Co.
241 A.2d 28 (New Jersey Superior Court App Division, 1968)
Wolf v. the Home Insurance Co.
247 A.2d 345 (New Jersey Superior Court App Division, 1968)
Schomber v. Prudential Ins. Co.
518 A.2d 1138 (New Jersey Superior Court App Division, 1986)
Manturi v. VJV, INC.
431 A.2d 859 (New Jersey Superior Court App Division, 1981)
Johnston v. Connaught Laboratories, Inc.
504 A.2d 166 (New Jersey Superior Court App Division, 1985)
Acqua Development Corp. v. Township of Holmdel
671 A.2d 636 (New Jersey Superior Court App Division, 1995)
New York v. Solvent Chemical Co.
210 F.R.D. 462 (W.D. New York, 2002)
Mannarino v. United States
218 F.R.D. 372 (E.D. New York, 2003)
Broushet v. Target Corp.
274 F.R.D. 432 (E.D. New York, 2011)
Anthony v. Abbott Laboratories
106 F.R.D. 461 (D. Rhode Island, 1985)
Draper v. Red Devil, Inc.
114 F.R.D. 46 (E.D. Arkansas, 1987)
Hurst v. United States
123 F.R.D. 319 (D. South Dakota, 1988)
Goldwater v. Postmaster General of United States
136 F.R.D. 337 (D. Connecticut, 1991)
Mathis v. NYNEX
165 F.R.D. 23 (E.D. New York, 1996)

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Bluebook (online)
121 A.3d 936, 442 N.J. Super. 248, 2014 N.J. Super. LEXIS 192, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jusino-v-lapenta-njsuperctappdiv-2014.