The U.S. District Court (S.D. West Virginia) recently dealt with the issue of whether an expert’s flat fee for depositions is reasonable.
The expert witness fee schedule provided for $385/hour but set flat fees of $3,000 for depositions lasting up to 4 hours and $5,000 for depositions lasting more than 4 hours and up to 8 hours.
The court found that the flat fee raises red flags and was inconsistent with Rule 26(b)(4)(a).
The court stated:
Brayman contends that Mr. Petty’s $5,000 fee is excessive, because he is effectively charging $1,000 per hour for his deposition time. Given that the other three experts in this case have hourly rates of $275, $275, and $375 for their deposition time, Mr. Petty’s $1,000 per hour charge is unreasonable on its face. Furthermore, Brayman argues that Mr. Petty, who is a chemical engineer, has less experience and training than the other experts in the field of work place safety. As such, his billing rate should be less, not more, than the others.
In contrast, Plaintiff indicates that Mr. Petty is highly respected and nationally recognized as an expert in work place injuries. In addition to having familiarity and experience in interpreting and applying safety regulations, Mr. Petty has written textbooks on forensic engineering and has testified in numerous high profile cases. Plaintiff argues that Mr. Petty’s $5,000 fee is reasonable considering the amount of time spent, his willingness to appear for deposition in Ohio, and the complexity of his opinions.
The undersigned finds Mr. Petty’s $5,000 charge to be unreasonable; primarily, because it is a flat fee charge. The undersigned agrees with other courts that have considered this issue and concluded that a flat fee does not comply with the intent of Rule 26(b)(4)(E)(i), which requires “some reasonable relationship between the services rendered and the remuneration to which an expert is entitled.” Anthony v. Abbott Labs., 106 F.R.D. 461, 464 (D.R.I. 1985). By its nature, “a flat fee runs counter to this principle.” Mannarino v. United States, 218 F.R.D. 372, 375 (E.D.N.Y. 2003) (holding “[i]t is simply not reasonable to require parties in every case to pay the same amount regardless of the actual `services rendered’ or `time spent complying with the requested discovery.'”); Nnodimele v. City of New York, No. 13-CV-3461, 2015 WL 4461008, at *2 (E.D.N.Y. July 21, 2015) (“Flat fees are disfavored because courts expect some reasonable relationship between the services rendered and the remuneration to which an expert is entitled.”) (internal quotations and citation omitted); Dinkel v. MedStar Health, Inc., No. CV 11-0998 (CKK-AK), 2014 WL 12792993, at *7 (D.D.C. Mar. 20, 2014;) (agreeing with other courts that a flat fee does not ensure what Rule 26 requires—a reasonable relationship between the services rendered and the remuneration to which the expert is entitled); also Massasoit v. Carter, 227 F.R.D. 264, 267 (M.D.N.C. 2005) (stating that “a flat fee does raise a red flag with respect to whether expert fees are reasonable, and requires the Court to closely scrutinize the situation” and noting that because most depositions vary and are not routinized, “a flat fee is not normally reasonable.”).
Based upon these factors, the undersigned finds that Mr. Petty’s regular hourly rate of $385 is reasonable for the time spent in responding to Brayman’s request for his deposition. Mr. Petty is entitled to payment for reasonable preparation time, New York v. Solvent Chemical Co., Inc., 210 F.R.D. 462, 471 (W.D.N.Y. 2002), although not to include time spent meeting or communicating with Plaintiff’s counsel. He is also entitled to payment for time spent taking the deposition, as well as a reasonable time reviewing and signing the transcript. See Fulks v. Allstate Prop. and Cas. Ins. Co., No. 3:14-cv-29473, 2016 WL 447628, at *3-4 (S.D.W. Va. Feb. 4, 2016).
Therefore, the Motion to Set a Reasonable Expert Witness Rate is granted. The parties are hereby ORDERED to meet and confer and agree on the total amount due for the time spent by Mr. Petty in responding to the discovery requested by Brayman. Given that Plaintiff’s counsel has already paid Mr. Petty, Brayman shall promptly reimburse Plaintiff’s counsel for that fee.
Note: Opposing counsel was made aware of the $5,000 flat fee but decided to proceed with the deposition.
For more information, see: DARRELL FINT, Plaintiff, v. BRAYMAN CONSTRUCTION CORPORATION, a foreign corporation, Defendant. Case No. 5:17-cv-04043. United States District Court, S.D. West Virginia, Beckley Division. January 7, 2019.