Attacking Unreasonable Expert Fees
As a defense attorney, you sometimes find yourself opposing a position that in most other circumstances you would zealously advocate. Some time ago, I had just such an experience after I gave a plaintiff my expert’s fee schedule for deposition testimony. When the plaintiff received this fee schedule, he filed a Motion for Relief from the costs my medical expert was charging to be deposed. My expert was charging in excess of $3,000 for a one-hour deposition. Of course, I needed to oppose this motion, but I personally found the motion persuasive. After all, $3,000 for a single hour of deposition testimony is rather striking. I also thought that the defense bar often suffers from similarly excessive fees. Nonetheless, I drafted a brief in opposition to this motion and attended the oral argument.
For the plaintiff, oral argument was simple. “This is ridiculous your Honor.” He simply explained the fact that my expert was charging $3,000 to be deposed, declared that this fee was unreasonable, and asked the Court for relief. Members of the audience assisted the plaintiff as they cried out with laughter when they heard the rate my expert was charging.
I was certain that the audience laughter marked the downfall of my position. However, I elected to make a rather technical argument by pointing out that courts cannot consider undeveloped arguments,[i] or arguments unsupported by reference to legal authority.[ii] “Your Honor, this Court cannot grant a motion based upon counsel’s opinion that my expert’s fee is ridiculous.” The plaintiff’s motion did not cite any legal authority or any evidentiary facts. The only supporting fact was the plaintiff’s (understandable) opinion that the fee was too high, which is not sufficient to support a motion.[iii]
The trial court accepted my position that the plaintiff’s arguments were undeveloped, and denied the plaintiff’s motion. When I left the courtroom, I could not help but sympathize with the plaintiff. The plaintiff’s argument was simple and persuasive― there was just not enough authority to support it.
This article explains how there is a recent movement in the law against unreasonable expert fees, how this recent development of the law can be used to support an argument that an expert’s fee is unreasonable, and how the defense bar has a clear interest in having Wisconsin law move away from the tolerance of unreasonable expert fees— particularly medical experts.
A. Wisconsin Law on Expert Fees
Before exploring the recent movement of the law against unreasonable expert fees, it is important to have some basic understanding of where Wisconsin law stands on the issue of expert fees for depositions. In short, Wisconsin’s law on the subject is scant at best. Though it is common practice to pay your opponent’s expert for the time it takes you to depose him or her, this common practice is not codified. Rather, the section 804.01 of the Wisconsin Statutes states the following with respect to the deposition of an opposing, testifying expert:
(d) Trial preparation: experts. Discovery of facts known and opinions held by experts, otherwise discoverable under par. (a) and acquired or developed in anticipation of litigation or for trial, may be obtained as follows:
1. A party may through written interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial. A party may depose any person who has been identified as an expert whose opinions may be presented at trial. Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions, pursuant to subd. 3. concerning fees and expenses as the court considers appropriate.
2. A party may, through written interrogatories or by deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial only upon motion showing that exceptional circumstances exist under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.
3. Unless manifest injustice would result, the court shall require that the party seeking discovery pay the expert a reasonable fee for the time spent in responding to discovery under the last sentence of subds. 1. and 2.; and with respect to discovery obtained under the last sentence of subd. 1., the court may require, and with respect to discovery obtained under subd. 2., the court shall require, the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert.[iv]
Analyzing this language, it is apparent that Wisconsin does not have a general rule requiring parties to pay a reasonable fee for deposing their opponent’s expert. Rather, subsection (3) quoted above requires payment of a reasonable fee only when the last sentence of either subsection (1) or (2) is triggered. Stated differently, payment of a reasonable fee is required only when the court orders “further discovery by other means” or when a party seeks discovery from a non-testifying expert.[v]
The limited scope of the reasonable fee requirement comes as a surprise to many attorneys and clients alike, especially given the wide-acceptance of the practice of paying a reasonable fee to depose your opponent’s expert. Perhaps this common practice had its genesis in the Federal Rules of Civil Procedure, which do require payment of a reasonable fee anytime an opposing expert is deposed. Rule 26(b) of the Federal Rules of Civil Procedure states the following:
(4) Trial Preparation: Experts.
(A) Expert Who May Testify. A party may depose any person who has been identified as an expert whose opinions may be presented at trial. If Rule 26(a)(2)(B) requires a report from the expert, the deposition may be conducted only after the report is provided.
(B) Expert Employed Only for Trial Preparation. Ordinarily, a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial. But a party may do so only:
(i) as provided in Rule 35(b); or
(ii) on showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.
(C) Payment. Unless 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 (B); and
(ii) for discovery under (B), also pay the other party a fair portion of the fees and expenses it reasonably incurred in obtaining the expert's facts and opinions.[vi]
Analyzing this language, it is clear that a party must pay the opponent’s expert a reasonable fee for deposition testimony.
Because Wisconsin statutory law is silent on the issue of whether parties are generally required to pay the cost to depose their opponent’s expert, Wisconsin case law is also predictably silent on what standards should be used to determine the reasonableness of an expert’s fee. Therefore, litigants are left with little, if any, Wisconsin legal authority on which to base an objection to an opposing expert’s fee. However, recent case law from other jurisdictions may provide persuasive legal authority that would allow litigants to make well-developed legal arguments in opposition to an expert’s fee.
B. The Law in Other Jurisdictions
The federal courts have articulated six factors that a circuit court should examine in determining whether an expert fee is reasonable:
- The expert’s area of expertise;
- The education and training required to provide the expertise that is sought;
- The prevailing rates for comparable and respected experts;
- The nature, quality and complexity of the information provided by the expert;
- The cost of living in the applicable geographic area; and
- Any other factor that may assist the court in achieving the proper balance of interest implicated by Rule 26.[vii]
Recently, these basic factors have been applied to strike down unreasonable expert fees. Specifically, in February 2008, the United States District Court for the District of Colorado issued a decision regarding this issue.
In Grady v. Jefferson County Board of County Commissioners,[viii] the U.S. District Court for the District of Colorado held that an expert neurological surgeon’s fee, which was $2,000 per hour, was unreasonable as a matter of law.[ix] Specifically, Dr. Richard Spiro was a neurological surgeon with a fee schedule wherein he charged $2,000 per hour for deposition testimony with a maximum total charge of $6,000.[x] Dr. Spiro had agreed to reduce his fee for the deposition in this case to $1,000 per hour.[xi] The defense argued that the rate of $1,000 per hour was not reasonable.[xii] In support of this argument, the defendants submitted the curriculum vitae of two Colorado orthopedic surgeons who charged $450 per hour for their deposition testimony.[xiii] The plaintiff rebutted this argument by contending that Dr. Spiro’s fee was reasonable because he was able to earn similar wages when conducting surgery, and because he was better qualified that the other physicians.
Upon examination of all the evidence, and after examining the six factors listed above, the court rejected these arguments. The court found that Dr. Spiro would not have earned similar wages if he did not attend the deposition because his deposition was scheduled for 4:00 p.m., a time when he would not be scheduled to conduct surgery.[xiv] Additionally, Dr. Spiro was less experienced and had fewer credentials than the other two physicians who were identified.[xv] Yet, Dr. Spiro was charging approximately twice what the other physicians were charging.[xvi]
Importantly, the court also voiced a strong concern that there must be “some reasonable relationship between the services rendered and the remuneration to which the expert is entitled. . . . ‘Unless the courts patrol the battlefield to ensure fairness, the circumstances invite extortionate fee setting.’”[xvii] Based on these concerns, the court held that Dr. Spiro’s hourly rate of $2,000 per hour was grossly excessive, and that the “steep fee” of $1,000 per hour was also excessive.[xviii] The court concluded that “[b]ased on the facts before the court, the court finds that a reasonable hourly rate for Dr. Spiro’s deposition testimony is not more than $600 per hour.”[xix]
Several courts adopted the Grady decision, including most recently, the U.S. District Court for the District of New Jersey in December 2009.[xx] In Crawford v. Am. Legion Ambulance Association, the court found that information was insufficient to demonstrate that the expert’s fee was reasonable, and used the Grady decision to limit the expert’s fee to $600.00.[xxi] Similarly, in Smith v. Ardew Wood Prods., the United States District Court for the Western District of Washington used the Grady decision and the six factors to reach the same conclusion.[xxii]
C. Practical Pointers
The factors set out above, as well as the persuasive case law, provide guidelines for the advocate in Wisconsin to argue a motion for relief from an expert’s fees. Essentially, there are two basic components one would use to argue against exorbitant fees. First, impeach the expert’s fee using actual, evidentiary facts that the court cannot dismiss as speculation or opinion. As established by the use of the six factors, there are several ways in which an advocate can bring the unreasonableness of an expert’s fee to the attention of a court while supporting the accusation.
The best facts to provide are the rates of other experts in the geographic area. There may be hearsay and other evidentiary obstacles by way of providing the court with this evidence. But, such evidence is the most persuasive proof of what is a reasonable expert fee. Another tactic is to attack the expert’s credentials. Compare his curriculum vitae to other specialists. Is he or she comparatively better than other experts in the field? Do his or her credentials support the fees? If not, establishing that more experienced physicians in the community are not charging as much will further evidence the unreasonableness of the expert’s fees. Lastly, you can attempt to determine exactly what work opportunities the physician is missing in order to attend the deposition. Often, physicians attend depositions when they have free time, not when they would otherwise be conducting a surgery. This evidence will help demonstrate to a court that the physician is truly not missing any opportunity to earn such high fees.
The second component of an advocate’s brief should include the case law mentioned above. Although non-binding authority in Wisconsin, Grady provides reasoning that should be used in a motion. Because there is no case law in Wisconsin on this point as of yet, giving the court reasoning from another jurisdiction will provide some authority for a court to use when making a ruling. Moreover, using the cases that have followed Grady will demonstrate (1) the case has provided value to other jurisdictions and therefore should be acknowledged in Wisconsin, and (2) the current trend in the law is to push away from inflated expert fees.
In summary, the defense bar has a clear interest in decreasing the rates experts are charging to be deposed. The defense bar already pays high rates to retain experts to testify in support of its clients. What is worse is the fact that the defense bar also pays high rates to depose experts who testify in opposition to its clients. The costs come from all directions, and they are doing nothing but increasing. By taking the time to object in a thoughtful and well-supported manner to an expert’s unreasonable fee, the defense bar may be able to move the State of Wisconsin in a direction away from the tolerance of such unreasonable fees.
[i] Truttschel v. Martin, 208 Wis. 2d 361, 369, 560 N.W.2d 315 (Ct. App. 1997).
[ii] State v. Pettit, 171 Wis. 2d 627, 647, 492 N.W.2d 633 (Ct. App. 1992).
[iii] See Park Ave. Plaza v. City of Mequon, 2008 WI App 39, ¶ 24, 308 Wis. 2d 439, 747 N.W.2d 703
[iv] Wis. Stat. § 804.01 (2010).
[vi] Fed. R. Civ. Pro. 26(b) (2010).
[vii] Moore’s Federal Practice―Civil § 26.80 (2010).
[viii] Grady v. Jefferson County Board of County Commissioners, 249 F.R.D. 657 (D. Colo. 2008).
[ix] Id. at 662.
[x] Id. at 659.
[xiv] Id. at 661.
[xv] Id. at 660.
[xvi] Id. at 661.
[xvii] Id. at 662.
[xx] Crawford v. Am. Legion Ambulance Ass'n, 2009 U.S. Dist. LEXIS 121505, ¶¶ 6, 7 (D.N.J. Dec. 30, 2009).
[xxii] Smith v. Ardew Wood Prods., 2009 U.S. Dist. LEXIS 64963, ¶ 4 (W.D. Wash. July 20, 2009).