We aren’t exactly breaking news by saying experts are extremely important. Even make or break. That’s why everyone – on both sides – want the best. And, in more old news, doctors are expensive. Doctors who serve as experts in complex mass tort litigation can be really expensive. But, based on our opening supposition, we are willing to pay. At least we are willing to pay to hire our own experts, again because we want the cream of the crop. But, what about plaintiffs’ experts? Our hope is that they are a step below our experts. Either on paper – their credentials aren’t as impressive – or in practice – their opinions are deficient or flawed. So when it comes time to pay for plaintiffs’ expert’s time at deposition, their expert’s fee can be a hard pill to swallow. But, often there isn’t much that can be done. If plaintiffs’ expert’s fees are comparable to our expert’s fees, complaining about it isn’t going to get you very far. It may actually do more harm than good in front of the judge. Nobody likes a whiner. But sometimes, there really is something to complain about.
Which was definitely the situation in Carver v. AMS, 2019 U.S. Dist. LEXIS 101687 (SDWV Jun. 17, 2019), a case in the AMS Pelvic Repair System MDL. Plaintiffs’ expert submitted an invoice asking defendant to pay him in advance of his deposition for four days of testimony at the exorbitant flat rate of $18,000 per day. Id. at *6. Wow. If you assume even 8 hours per day, that’s over $2000 per hour. Defendant, rightfully, refused and offered to pay $750 per hour without prepayment. Id.
It was up to the court to decide what was a “reasonable fee,” which is what is required by Fed. R. Civ. P. 26(b)(4)(E)(i). The first thing the court did was strike the request for a flat fee altogether. There has to be some “reasonable relationship between the services rendered and the remuneration” sought. Id. at *7 (good string cite of cases on this point). In other words, an hourly rate for actual hours spent. The court next went on to list 8 factors to be considered in determining if a fee is reasonable. We set them out here for your convenience:
(1) the witness’s area of expertise, (2) the education and training that is required to provide the expert insight that is sought, (3) the prevailing rates for other comparably respected available experts, (4) the nature, quality and complexity of the discovery responses provided, (5) the cost of living in the particular geographic area, (6) the fee being charged by the expert to the party who retained him, (7) fees traditionally charged by the expert on related matters, and (8) any other factor likely to be of assistance to the court in balancing the interests implicated by Rule 26.
Id. at *8. It was plaintiffs’ burden to establish reasonableness so they set forth their expert’s credentials and documents showing what other experts in mesh cases charged for deposition time. Notably, they also documented what defendant’s expert in this case was charging for his time, $900 per hour. Id. at *9-10. Like we said at the outset, this is really a goose/gander issue. Unless there is some measurable difference between plaintiffs’ expert and defendant’s expert, it is going to be difficult for a judge to require different fees. It was also important to the judge that plaintiffs’ expert had charged plaintiffs $900 per hour for case review. Another factor in favor of applying a goose/gander rule.
While the court felt $900 per hour was high, it wasn’t unreasonable in light of both what defendant’s expert was charging and what plaintiffs’ expert charged plaintiffs. Id. at *12. And, prepayment was not required, as per local practice. The result is likely a reduction by almost half what defendants were being asked to pay.
Experts are expensive. But if plaintiffs’ expert’s fees make you do this – you might want to get the court involved.