Massasoit v. Carter

227 F.R.D. 264, 2005 U.S. Dist. LEXIS 6995, 2005 WL 1027148
CourtDistrict Court, M.D. North Carolina
DecidedMarch 18, 2005
DocketNo. 1:04CV00151
StatusPublished
Cited by18 cases

This text of 227 F.R.D. 264 (Massasoit v. Carter) is published on Counsel Stack Legal Research, covering District Court, M.D. North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Massasoit v. Carter, 227 F.R.D. 264, 2005 U.S. Dist. LEXIS 6995, 2005 WL 1027148 (M.D.N.C. 2005).

Opinion

ORDER

ELIASON, United States Magistrate Judge.

Plaintiffs have filed a motion for this Court to determine the reasonable fees which defendants’ expert witness can charge for having his deposition taken. Defendants have identified their expert witness pursuant to Fed.R.Civ.P. 26(a)(2)(A) and have identified him as a retained expert for whom an expert report is necessary pursuant to Rule 26(a)(2)(B). The expert report has been supplied to plaintiffs, who now want to take the deposition of defendants’ expert. Plaintiffs complain that the expert intends to charge a $2,000.00 flat rate fee, which plaintiffs claim is unreasonable.

The starting point begins with Rule 26(b)(4)(C). It states that “[ujnless manifest injustice would result, ... the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under this subdivision.” As noted by the treatise writers:

Although the rule is mandatory in the sense that the court may not entirely refuse to direct payment, it is up to the district court to determine what is a reasonable fee. The courts have deplored the paucity of authority on the subject, but have resisted efforts by experts to charge opposing parties unreasonable amounts.

8 Charles Alan Wright, Arthur R. Miller and Richard L. Marcus, Federal Practice and Procedure § 2034, at 469-470 (1994 Ed.).

In support of their motion, plaintiffs state that they have retained three expert witnesses, who charge from $75.00 per hour to $125.00 per hour. They further contend that they have only requested defendants’ expert to reserve two to three hours at his office and that the $2,000.00 flat rate fee amounts to a charge of over $600.00 an hour. From this, plaintiffs argue that not only is defendants’ expert deposition fee out of line with what other experts charge, but it is patently exorbitant.

Other courts which have dealt with this issue apply a number of factors which are helpful in resolving such disputes. As stated by the court in U.S. Energy Corp. v. NUKEM, Inc., 163 F.R.D. 344, 345-346 (D.Colo. 1995):

Although there is a paucity of decisions in the area of what constitutes a “reasonable” fee for an expert, those cases which have addressed the issue have set forth seven factors to be considered in determining whether or not a fee is reasonable: (1) the witness’s area of expertise; (2) the education and training that is required to provide the expert insight which 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 being 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 be of assistance to the court in balancing the interests implicated by Rule 26. Jochims v. Isuzu Motors, Ltd., 141 F.R.D. 493, 495 (S.D.Iowa 1992); see also Hose v. Chicago and North Western Transp. Co., 154 F.R.D. 222 (S.D.Iowa 1994); Goldwater v. Postmaster General of the United States, 136 F.R.D. 337 (D.Conn.1991).

Defendants recognize these factors and provide some information in support of them. The case involves an allegation of use of excessive force by a law enforcement officer [266]*266in violation of 42 U.S.C. § 1983. They show that their expert is nationally and internationally renowned in the field of law enforcement and related areas. Defendants propose to have him give an opinion that the officer used reasonable force, but it is more likely that he will be able to render an opinion with respect to training and practices relating to law enforcement officers.1 He has extensive experience in training, speaking, teaching, and acting as an expert witness. They also show that he has education, training, and experience in these areas, and have included his curriculum vitae. Advanced degrees are not required for practicing, and the field is not one of technical complexity. With respect to the prevailing rates, defendants contend that his rates are comparable with other national experts and have included the fee schedules of a Dr. George Kirkham. Defendants contend that because both individuals have national and international stature, that the fee- of defendants’ expert is not unreasonable.2

Next, defendants state that this is a complex case. The Court would agree that it is an unusual case because it involves allegations of excessive force pursuant to 42 U.S.C. § 1983, wherein two United States Army soldiers were shot by a Moore County Deputy Sheriff, while they were engaged in a covert or secret training exercise (of which the deputy was apparently unaware), after the deputy made a stop of the vehicle in which the soldiers were riding. However, the issues on which the expert will render an opinion are not complex in the sense that they require significant advanced study, research, or training and experience, in the same way that would be required of a neurosurgeon, a rocket scientist, or accountant. The experts in this case will be testifying to police standards. See n.l. This is not a field with stringent entrance requirements.

Because defendants’ expert apparently consults as a living, defendants do not show the fees the expert would forego by having his deposition taken. That can be an important indicator as to whether the deposition fee is excessive. However, defendants do utilize the expert’s fee schedule to prove that there is not an unusual discrepancy in the deposition charge compared to the fees which the expert has charged defendants themselves. According to the fee schedule, the expert charges $250.00 per hour, with a $6,000.00 minimum, to review a ease. For trial testimony, he charges $250.00 per hour for preparation, and $3,000.00 a day. For depositions, he bills a flat rate of $2,000.00 per day. He charges $2,000.00 per site inspection or investigation.

Plaintiffs did not file a reply to defendants’ brief and, consequently, much of defendants’ assertions have gone unchallenged. Therefore, the Court will only focus in on the most [267]*267glaring problem presented in this case— which is whether the Court should permit an expert to charge a flat rate fee for his deposition. The answer is that a flat rate fee does raise a red flag with respect to whether expert fees are reasonable, and requires the Court to closely scrutinize the situation. Because a flat rate fee by its nature assumes that the expert will devote an approximately equal amount of time and skill for one event as another, the Court must examine the proposition with respect to the particular case in front of it to see if there is a rational basis for such a fee. For example, it is standard practice that physicians charge, and insurance companies reimburse, fixed amounts for certain medical procedures because they have been routinized. However, that is not the case with depositions. Some may last an hour, some may last days. For this reason, a flat rate fee is not normally reasonable. See Brought v. Batson, No.

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227 F.R.D. 264, 2005 U.S. Dist. LEXIS 6995, 2005 WL 1027148, Counsel Stack Legal Research, https://law.counselstack.com/opinion/massasoit-v-carter-ncmd-2005.