Tips for Dealing with Exorbitant Expert Witness Fees

Attorneys in certain practice areas, such as medical malpractice or product liability, may regularly encounter the same experts, such as doctors who perform independent medical examinations or economists who opine on damages. The savvy practitioner will track expert fees in her locality or region and make note of changes or patterns—a sudden steep increase in an hourly rate, or a minimum number of hours to be paid in advance, or a surcharge on travel expenses. When she encounters an expert whose fees seem out of line, she can validate her suspicion that her client is being taken for a ride with objective data about reasonable charges. A collection of current rate sheets can be compelling evidence to rebut a proposed rate. Dollar-for-dollar comparisons, of course, need to be adjusted for the passage of time and increases in rates generally. But the courts welcome such specific information when exercising their discretion to evaluate and adjust an expert witness fee in the discovery phase of a case.

Rule 26(b)(4)(E) of the Federal Rules of Civil Procedure provides that “unless manifest injustice would result . . . the court must require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery.” In determining a reasonable fee for an expert under Rule 24(b)(4)(E), courts have found several factors may be relevant: (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 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. Grady v. Jefferson County Bd. of County Com’s, 249 F.R.D. 657, 662 (D. Colo. 2008) citing U.S. Energy Corp. v. Nukem, 163 F.R.D. 344, 347 (D. Colo. 1995). Courts in the Second, Third, Fifth, Sixth, Ninth, and Tenth Circuits have cited Grady with approval.

The court must ensure that there is some reasonable relationship between services rendered by an expert responding to discovery and the remuneration to which the expert is entitled. Id. In its analysis the court must be guided by the information in the record. “[W]hile a party may contract with any expert it chooses, the court will not automatically tax the opposing party with any unreasonable fees charged by the expert.” Id.; see also Young v. Global 3, Inc., 2005 U.S. Dist. LEXIS 46416 (D. Colo. May 26, 2005). As the Grady court observed, “[u]nless the courts patrol the battlefield to insure fairness, the circumstances invite extortionate fee setting.” Grady, 249 F.R.D. at 661, citing U.S. Energy Corp., 163 F.R.D. at 347.

Specifically, the court in conducting such a “patrol” can order that the expert’s fee be reduced or be shared by the parties rather than solely by the party seeking the discovery. However, the court will expect a motion to reduce a fee or a motion for protective order regarding a fee to provide sufficient information for it to exercise its discretion in ordering fee-reduction or cost-sharing.

In Grady, the expert witness, a neurological surgeon in Pittsburgh, Pennsylvania, had submitted a fee schedule of $2,000 per hour for deposition testimony (with a maximum total charge of $6,000) and a fee of $1,000 per hour for a telephone conversation. The doctor subsequently had agreed to accept $1,000 per hour for his testimony but the defense still sought relief from the court. Id. at 659. In addition to analyzing specific rate information regarding other medical experts in the case, the court also examined in detail the professional careers and credentials of each of the medical experts. Id.at 659–61. Additionally, the court addressed—and rejected—an argument that the proposed deposition interfered with the doctor’s regular schedule of seeing patients and performing surgery by noting that it actually was scheduled late in the day to avoid such conflicts. Id. at 661. The court acknowledged that providing expert testimony in an adversarial deposition taken by opposing counsel is perhaps more stressful than handling some office visits with patients. But the court decided that it was unlikely that the charge for an office visit was greater than $1,000 per hour (while noting there was no information provided about office visit charges). Id. Accordingly, the court decided even the already-reduced proposed rate of $1,000 per hour was exorbitant and reduced it further, to $600 per hour. The court found the earlier-proposed rate of $2,000 per hour “grossly excessive” and nearly “extortionate.” And the court said it “must not shirk its independent responsibility as gatekeeper against excessive windfall billing by medical experts appearing in federal court.” Id. at 662.

Similarly, in Young, the court examined the $1,200 per hour rate charged by a defense medical expert who had been deposed and then had the rate challenged by plaintiff. The expert already had charged the defense $5,000 for ten hours of work reviewing records and preparing his expert report prior to the deposition. Young at *8. The court found this rate differential of $500 per hour versus $1,200 per hour significant in determining the latter was “grossly excessive” and accordingly reducing the deposition rate to $500 per hour. Id. at *9. The court rejected the argument that the stated $1,200 rate was binding because "this court will not feel itself bound by an 'agreement' which would result in a patently unreasonable fee." Id. at *5.

Rule 1 of the Federal Rules of Civil Procedure states that the rules “should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding” (emphasis added). These goals are thwarted when one party seeks to make the expense of discovery for the opposing party so exorbitant that discovery needed for trial preparation will be curtailed or abandoned altogether. In such circumstances, the court should exercise its authority under rules 1-026 and 1-030 of the Federal Rules of Civil Procedure to protect parties from being charged patently excessive fees by experts.

The well-prepared counsel for any party should consider having a database of information regarding expert fees especially for those experts routinely encountered in a particular practice area and locale. Providing the court with ammunition for its patrol of the discovery battlefield can pay a handsome reward in the reduction of exorbitant expert witness fees.

Keywords: litigation, trial practice, expert witnesses, fees, tips for lawyers

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