Whoever said “you get what you pay for” never deposed a plaintiff expert.  Most plaintiff experts we’ve encountered acquired their expertise – if that’s what you want to call it – not in any substantive area but, rather, in slinging junk science hash at juries with a straight, and maybe even solemn, face.  As if to add insult to injury, some plaintiff experts ask us to pay ludicrous fees for the privilege of deposing them and enduring 3-7 hours of relentless testi-lying.  A couple of plaintiff experts even demanded that we pay them for their prep time.  (When we flat out refused that last bit, one expert showed up at the deposition and answered almost every question with an extended declamation about how he could not answer because he hadn’t been compensated by us to study for the deposition.) 

We get it that experts can be expensive. That applies to both sides. Long ago, we employed an expert in an antitrust case who had acquired notoriety in the Microsoft litigation for breaking the $1000 per hour barrier.  Here’s the thing: he was really, really smart, he did a lot of work, and he could explain things so that even simpletons such as ourselves could grasp complex concepts.  In another case, we helped prepare a Nobel Prize winning University of Chicago economist.  He was alarmingly brilliant.  Everything he said seemed original and insightful. During lunch at a Chicago pizzeria, he held forth about the comparative merits of deep dish vs NY pizza.  All we could think at the time was that this guy was a Nobel Prize winner, and everything he said was profound.  He was an oracle with a fee schedule.  And that fee schedule was mighty steep.  (The occasional former Surgeon General was about as impressive as anything we ever saw from the other side.  And then after deposing such experts, we became a lot less impressed with that title. It was disillusioning.)

We have not run into any Nobel Prize winning plaintiff experts.  All we get from them is “Bradford-Hill, differential diagnosis, blah blah blah.”  There is bloviation and robotic “analysis.”   What there is not is any sense of embarrassment about their ridiculous fees.  Occasionally, these plaintiff experts demand deposition fees that are far north of what they get in their actual non-litigation practice (if that even exists). Is there anything that we defense hacks can do when a plaintiff expert quotes a deposition fee that is utterly disconnected from reality, regular fees, and good taste?

Yes, there is. And the recent case of Delrossi v. Morales-Ortiz, 2024 Conn. Super. LEXIS 1879 (Conn. Super. Ct. Sept. 24, 2024), furnishes a fine example.  This decision would have fit nicely into our Stupid Expert Fees post.  

In Delrossi, a plaintiff-side orthopedic surgeon expert who apparently frequents Connecticut litigation, demanded $5,000/hour for the first two hours of his deposition and $2,500 for every hour thereafter, in advance and effectively non-refundable. Wow. That doctor must have been nominated for a Nobel Prize, MacArthur Fellowship, or at least a Mass Torts Made Perfect Golden Bucket, right?  Wrong. The defendants in Delrossi unsurprisingly found the fee exorbitant.  The plaintiff stood on the expert’s fee schedule, without even a CV suggesting why such a fee was appropriate. 

Though the Delrossi case was in Connecticut state court, the judge followed criteria that courts typically apply pursuant to Fed. R. Civ. P. 26(b)(4)(C). Those criteria, according to the Delrossi court, include: (1) the witness’s area of expertise, (2) the education and training required, (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 an expert on related matters, and (7) any other factors likely to assist the court in balancing the interest implicated by Rule 26. Applying these factors (especially number 3), the Delrossi court knocked the plaintiff expert’s fee down to $750 an hour.  The opinion chiefly relies on two earlier cases involving orthopedic surgeons, which reduced the fee to $500 or $1000 an hour, and split the difference. 

The Delrossi decision looks like common sense to us.  It also suggests that if one is going to haggle over the fees for an expert deposition, both sides would be smart to consult the Rule 26 criteria listed by the Delrossi court and try to bolster the factual record.  As in real estate, think first and foremost of comps. (That is, unless you are dealing with a Nobel Prize winner.)