The United States District Court for the Southern District of Ohio ruled that $750/hour was a reasonable expert witness fee for the deposition of a highly regarded academic gender bias expert witness in an Equal Pay Act case.[1]

This case involved an alleged violation of the Equal Pay Act by Miami University. According to the plaintiffs’ complaint, a group of female professors at the university were being compensated at a different rate than their male counterparts based solely on their gender.

Federal Rule of Civil Procedure Rule 26(b)(4)(E)(i) states that ‘[u]nless manifest injustice would result,’ a party must pay an expert a ‘reasonable fee’ for a deposition. In the Sixth Circuit and elsewhere, federal case law reflects widespread judicial criticism of blatant attempts to gouge opposing parties with steep fees, and an activist approach in reducing fees deemed to be exorbitant. In accordance with Rule 26(b)(4)(E)(i), Federal District Courts in Ohio called upon to determine a “reasonable” expert fee will consider the prevailing rate for a comparable, available expert as one of a multitude of factors, including: (1) the witness’s area of expertise; (2) the education and training required for the opinion sought; (3) the nature, quality and complexity of the discovery responses provided; (4) the fee being charged to those who retained the expert; and (5) fees traditionally charged on related matters.

The plaintiffs’ expert, arguably the foremost expert witness in the field of gender bias in student evaluations of professors, typically charges $1,500/hour for a deposition. Plaintiffs note that a review of their expert’s resume reveals that he is one of the main authors in the preeminent article on student teacher evaluations and sexual harassment.[2] Based on his credentials and expertise, plaintiffs’ contend that, on the West Coast, a reasonable expert witness fee for this expert is $1500.00 per hour.

Defense counsel offered to pay $500/hour for the expert’s deposition. The parties sought Court intervention to determine what could be considered a “reasonable fee” in accordance with F.R.Civ.P. 26(b)(4)(E)(i).

To supplement their argument that $500/hour was a reasonable fee for plaintiffs’ expert deposition, defendant provided the Court with a national expert witness fee survey which demonstrates that the average hourly fee for non-medical experts is $319 for deposition time. Moreover, defendant also argued that they incurred significant travel expenses to travel to California for the expert’s deposition.

Plaintiffs presented evidence that their expert had received the requested $1500.00 per hour fee in other cases, including once for trial testimony in the same county as the pending case.

The Court, relying on precedent from the Northern District of Illinois[3] that an “expert’s fee should not be so high as to impair a party’s access to necessary discovery or result in a windfall to the expert,” held that a fee of $750/hour was reasonable for this academic gender bias expert witness.[4]

[1]https://scholar.google.com/scholar_case?case=17626875306476321458&q=Brunarski+v.+Miami+Univ.+(S.D.+Ohio+2017)&hl=en&as_sdt=40000006

[2] See Teaching Evaluations (mostly) Do Not Measure Teaching Effectiveness. Evaluating Evaluations, Part 1: Do Student Evaluations Measure Teaching Effectiveness? What Evaluations Measure, Part 2: What Exactly Do Student Evaluations Measure? and Student Evaluations Of Teaching Are Not Only Unreliable, They Are Significantly Biased Against Female Instructors.

[3] Smith v. City of Chicago, No. 12 CV 4546, 2013 WL 5609332, at *3 (N.D. Ill. Oct. 11, 2013).

[4] Brunarski v. Miami University at pg 4.