The United States District Court for the Eastern District of New York held that $400.00 per hour was a reasonable fee for an orthopedic surgeon expert witness.[1]
The plaintiff in this personal injury case sought to admit the testimony of her orthopedic surgeon expert witness, Dr. Sebastian Lattuga.[2] Dr. Lattuga was testifying as both a fact witness in his capacity as the plaintiff’s treating orthopedic physician and as an expert witness in spine pain management and orthopedic surgery. The plaintiff failed to respond to the defendant’s motion to have the court determine a reasonable fee.[3] Because she didn’t respond, the Court used its own research and knowledge, along with the information available from the defendant to set a reasonable rate for Dr. Lattuga’s time. Dr. Lattuga requested $600 per hour, and the only evidence in support of that rate was his resume and deposition summary, which had been provided to the defendant prior to this motion.[4]
The defendant requested a reduction to $250 an hour for deposition time and $150 an hour for preparation time. In the Eastern District of New York, courts allow deponent expert witnesses to charge a reasonable rate for time expended preparing for a deposition as well as for the deposition itself.[5] These courts do not, however, distinguish between the two when it comes to determining a reasonable rate of compensation; the same rate applies to time spent preparing as for the deposition itself.[6] Courts in the Eastern District of New York look at: “(1) the witness’ area of expertise; (2) the education and training that is required to provide the expert insight that is sought; (3) the prevailing rates for other comparably respected available experts; (4) the nature, quality and complexity of the discovery responses provided; (5) the cost of living in the particular geographic area; (6) any other factor likely to be of assistance to the court in balancing the interest implicated by Rule 26; (7) the fee being charged by the expert to the party who retained him; and (8) fees traditionally charged by the expert on related matters”.[7] The Court specifically mentions the lack of evidence as to Dr. Lattuga’s compensation in other matters where he was an expert witness.[8]
In this case, the Court also looked to a previous decision where this defendant, through the same attorneys, disputed the rate charged by an orthopedic surgeon testifying as an expert.[9] In that case, an “experienced orthopedist” without any otherwise “exceptional qualifications” was compensated at $400 per hour.[10] The Court also cited another case where an orthopedic surgeon was compensated at a rate of $400 per hour.[11] In choosing precedent to follow, the Court looked to similarities between the experts and testimony in question, as well as the recency of the case.
The Court concluded that $400.00 per hour was a reasonable rate both for preparation and deposition time for a treating orthopedic surgeon testifying as an expert witness. Because Dr. Lattuga testified at deposition that he spent two hours preparing for a ninety-minute deposition, the Court ordered compensation in the amount of $1,400.00.[12]
[1] Broushet v. Target Corp., 274 F.R.D. 432, 434-435 (2011).
[2] Id. at 432-433.
[3] Id. at 433.
[4] Id.
[5] Id. at 434.
[6] Id.
[7] Id. at 433.
[8] Id.
[9] Casiano v. Target Stores, 2008 U.S. Dist. LEXIS 65542, *5 (E.D.N.Y. 2008).
[10] Id.
[11]Broushet v. Target Corp., 274 F.R.D. at 434 (citing Krewyn v. Gateway Target, No. CV-05-3175, 2008 U.S. Dist. LEXIS 59082 (E.D.N.Y. July 31, 2008).
[12] Id. at 435.
