United States District Court, D. Kansas
MEMORANDUM & ORDER ON MOTION TO COMPEL PAYMNET OF
REASONABLE EXPERT WITNESS FEES
KENNETH G. GALE U.S. MAGISTRATE JUDGE.
before the Court is Plaintiff's “Motion to Compel
Payment of Reasonable Expert Witness Fees.” (Doc. 88.)
Having reviewed the submissions of the parties, and having
heard the parties argue their positions at hearing,
Plaintiff's motion is GRANTED in part
and DENIED in part.
a premises liability action in which Plaintiff alleges she
was injured while attempting to exit through the automatic
doors of an OfficeMax store. The case was originally filed in
the District Court of Reno County, Kansas, but was removed to
the District of Kansas by Defendants. (Doc. 1.)
brings the present motion to compel Defendants to pay Dr.
Lynne Fernandez “for her reasonable preparation time
and for other fees associated with her deposition of May 14,
2018, pursuant to the Federal Rules of Civil
Procedure.” (Doc. 89, at 1.) Dr. Lynne was designated
as an expert regarding Plaintiff's future medical and
economic needs in December 2017. (Doc. 44.) Defendants
deposed Dr. Lynne in May 2018 from 8:00 a.m. until 12:26 p.m.
summarized the invoices they received for Dr. Fernandez's
time relating to the depositions:
The first invoice, dated May 15, 2018 totals $5, 325.00. It
includes $4, 950.00 - 8.25 hours at a rate of $600 per hour -
for ‘Deposition Preparation Time,' and $375.00 -
0.5 hours at a rate of $750 per hour - for ‘LCP
Additional time sworn testimony.' The second invoice,
dated June 26, 2018 totals $1, 350.00 - 2.25 hours of
‘Additional Record Review: Deposition Transcript'
at an hourly rate of $600 per hour.
(Doc. 90, at 2.) Defendant continues that “[a]s to the
review of her deposition transcript, Dr. Fernandez spent 2.25
hours reviewing her transcript and making changes on the
errata sheet, but she failed to submit her errata pages
within the time specified by Fed.R.Civ.P. 30(e), and
therefore her changes were not accepted.”
(Id., citing Doc. 90-2.)
to Plaintiff, during communication regarding this dispute,
Defendants indicated that they are “only obligated to
pay Dr. Fernandez for reasonable preparation time. Without
any explanation, Defense counsel then summarily described Dr.
Fernandez' invoice of 8.25 hours at the rate of $600 per
hour as ‘not reasonable.'” (Doc. 89, at 2-3;
Doc. 89-4.) Defendants indicated that they would be willing
to pay for one hour of Dr. Fernandez's preparation time.
(Doc. 89-4.) Plaintiff responded that Dr. Fernandez would
have been unprepared for the deposition “had she spent
only one hour readying herself for the deposition.”
to Fed.R.Civ.P. 26(b)(4)(A), “[a] party may depose any
person who has been identified as an expert whose opinions
may be presented at trial.” The Rule also states that
“[u]nless manifest injustice would result, the court
must require that the party seeking discovery: (i) pay the
expert a reasonable fee for time spent in responding to
discovery under Rule 26(b)(4)(A) or (D).” Fed.R.Civ.P.
26(b)(4)(E)(i). Courts have interpreted the phrase
“time spent in responding to discovery” to
include the “expert's reasonable time in
preparation for the deposition.” Monsour's Inc.
v. Menu Maker Foods, Inc., No. 05-1204-MLB, 2007 WL
437780, at *1-2 (D. Kan. Feb. 6, 2007).
argue that “the hourly rate charged by Dr. Fernandez
and the amount of time she spent preparing for her deposition
are unreasonable.” (Doc. 90, at 2.) Thus, the issue
before the Court is to determine what is
“reasonable” in the context of the amount of time
spent and the rate charged.
argue that it was unreasonable for Dr. Fernandez to charge
$600 per hour for the 8.25 hours she spent preparing for her
deposition. Defendants contend that Dr. Fernandez was paid a
flat rate for her expert report, and given the amount of time
she contends she spent preparing the ...