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Jones v. Officemax North America, Inc.

United States District Court, D. Kansas

December 14, 2018

MICKEY JONES, Plaintiff,
v.
OFFICEMAX NORTH AMERICA, INC., et al., Defendants.

          MEMORANDUM & ORDER ON MOTION TO COMPEL PAYMNET OF REASONABLE EXPERT WITNESS FEES

          HON. KENNETH G. GALE U.S. MAGISTRATE JUDGE.

         Now 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.

         FACTS

         This is 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.)

         Plaintiff 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. (Doc. 89-2.)

         Defendants 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.)

         According 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.” (Doc. 89.)

         ANALYSIS

         Pursuant 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).

         Defendants 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.

         A. Hourly Rate.

         Defendants 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 ...


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