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Court Rejects Requirement for Defendant to Pay Flat Fee to Plaintiff’s Doctor for Deposition Testimony

By on September 4, 2015 in Blog with 0 Comments

There is often a dispute between the parties as to the fee charged by the opposing expert for a discovery deposition, which must be paid by the party requesting the deposition. Specialists sometimes charge exorbitant flat fee rates and counsel argue over which party must pay that fee. In a recently published Law Division decision, just approved for publication on August 26, 2015, Jusino v. Lapenta, 2014 N.J. Super. LEXIS 192  (Law Div. May 23, 2014), Judge Savio (Atlantic County) refused to require the defendant to pay the flat fee charged by the plaintiff’s neurosurgeon for his discovery deposition.

In Jusino, the defendant noticed the discovery deposition of the plaintiff’s expert, Dr. Andrew Glass, a board certified Neurological Surgeon, and inquired as to his fee schedule. The plaintiff responded that Dr. Glass’s current fee for attending a discovery deposition was $1000/hour with a 3 hour minimum fee of $3000, as well as a $500 preparation fee and if there were excessive medical records to review, excessive time requirement fees may apply.

The defendant refused to pay for any of the preparation time and protested the amount of the attendance fee. Defendant suggested that a reasonable fee should be between $300 to $400/hour. When the plaintiff refused to produce Dr. Glass unless the defendant agreed to pay Dr. Glass his proposed attendance fee in advance of the deposition, the defendant moved to have the court set the fee for him to attend.

Judge Savio pointed out that there was no published or unpublished opinion in the New Jersey Supreme Court or Appellate Division defining the term “reasonable fee” as the words are used in the civil rules governing expert depositions. The only reported decision was a 30 year old Law Division decision that found that $200/hour was a reasonable fee to pay a physician to be deposed.

The court rejected the plaintiff’s suggestion that the defendant be required to pay Dr. Glass to prepare for his deposition. Judge Savio found that it was the plaintiff’s responsibility to pay for his preparation.

The plaintiff argued that the court should consider the fee schedules of 3 other neurosurgeons in the Southern New Jersey region in setting a reasonable fee for Dr. Glass. These other physicians charged even more than Dr. Glass for their depositions. Regardless, Judge Savio found that the issue was not how much money the expert charges for the deposition or what a majority of similarly credentialed experts charged but what is a reasonable amount of money for an opponent to pay the expert for attending a deposition.

The court determined that the plaintiff had not met her burden that Dr. Glass’s flat fee of $3000 was reasonable. Judge Savio assumed that Dr. Glass would generate at least $750/hour while performing services as a neurosurgeon. Hence, the court ordered that the defendant pay $750 for the first hour and an additional $750 for each hour or portion of each hour of his deposition after the first hour. The court denied the request for a prepayment fee.

The upshot of this ruling is that the plaintiff (or whomever is the party producing the expert) would responsible to front any prepayment and to pay the balance between the fee charged by the expert and the amount to be paid by the opposing party. It is not clear, however, how the court arrived at the rate of $750/hour to be generated by a neurosurgeon in his daily practice. Nevertheless, this case may provide guidance in future disputes over the payment of expert fees for a discovery deposition.

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About the Author

About the Author:

Ms. Ramos is an Executive Committee Member and Co-Chair of the Litigation Department at Capehart Scatchard, P.A. located in Mount Laurel, New Jersey. She is an experienced litigator with over 25 years experience handling diverse matters. Practice areas include tort defense, business litigation, estate litigation, tort claims and civil rights defense, construction litigation, insurance coverage, employment litigation, shareholder disputes, and general litigation.

For the years 2020 and 2021, Ms. Ramos was selected for inclusion in The Best Lawyers in America© in the practice area of Litigation - Insurance. The attorneys on this list are selected based upon the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. A complete description of The Best Lawyers in America© methodology can be viewed via their website at: https://www.bestlawyers.com/methodology.

In 2021, Capehart Scatchard and Ms. Ramos received the “Best Law Firm” ranking in the area of Litigation – Insurance (Metro, Tier 3) published by U.S. News & World Report and Best Lawyers®. Law firms included on the list are recognized for professional excellence with consistently impressive ratings from clients and peers. To be eligible for a ranking, a firm must have at least one attorney who has been included in the current edition of Best Lawyers in America, which recognizes the top five percent of practicing lawyers in the United States. Betsy Ramos (Litigation – Insurance) was recognized for this prestigious award in the 2021 edition. For a description of the “Best Law Firm” selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

“Best Law Firms” is published by Best Lawyers in partnership with U.S. News & World Report. For a description of the selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

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