By: Russ M. Patane, Esq. and Erin L. Peters, Esq.
In the published Law Division decision of Justino v. Lapenta, the Trial Court determined the reasonableness of the plaintiff’s expert’s preparation fee and flat fee he charged for his deposition testimony. Utilizing Federal Standards, the Court sets forth the factors to be considered in setting a reasonable fee for an expert for attending a discovery deposition under Rule 4:10-2(d)(2).
The matter in question arose from an automobile accident, and the issue was the permanency of plaintiff’s injuries. Defendant noticed the deposition of plaintiff’s neurosurgeon expert, whose fee was $1000 per hour with a minimum fee of $3000; a $500 preparation fee; and a possible unspecified excessive medical records/excessive time fee. Defendant refused to pay the preparation fee and protested the reasonableness of the attendance fee, arguing that the fee should be an hourly charge in the range of $300 to $400 per hour. Plaintiff refused to produce the expert without payment according to his fee schedule, and defendant moved to have the Court set the expert’s fee for his discovery deposition pursuant to the Rules of Court.
The Trial Court recognized that the Rules allow for payment of a “reasonable fee” for the expert’s deposition, which is to be set by the Court if the parties cannot agree. The same rule typically requires the proponent of the witness to pay for the expert’s preparation time.
The Trial Court acknowledged that the term “reasonable fee” is not defined by an appellate court in this jurisdiction. While there was a decades-old trial court opinion discussing the issue, it did not provide significant guidance. As such, the Trial Court looked to the analogous Federal Rule of Civil Procedure, and looked to cases outside of New Jersey interpreting the rule.
The Trial Court adopted the reasoning and factors set forth by the District of Connecticut in Goldwater v. Postmaster General of the United States. Similarly recognizing that the term “reasonable fee” was largely undefined, the Goldwater Court set forth the following factors: (1) the witness’s area of expertise; (2) the education and training that are 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) the fee actually being charged by the expert to the party who retained him; and (7) the fees traditionally charged by the expert on related matters.
The Trial Court also cited with approval Mannarino v. United States. In Mannarino, the Court confirmed that the party seeking the fee carries the burden of proving its reasonableness, and, if its “reasonableness” is not well-supported, the Court can use its discretion to determine a reasonable fee. The Mannarino Court struck down an expert’s proposed flat fee of $3000 as unreasonable. It emphasized the Court’s expectation of “some demonstration of a reasonable relationship” between the expert’s services and the expert’s reimbursement, and commented that the use of a flat fee requires the parties in a simple case to subsidize the parties in a more complex case, where more expert time is required.
In turning to the facts of the case before it, the Trial Court in Jusino refused to require the defendant to pay for the expert’s preparation time, finding that the expert, by employing possible and unspecified “excessive” time/record fees, was essentially requesting a “blank check.” Moreover, there was no support for a deviation from the standard requirement for the proponent to bear his or her expert’s preparation fee.
Moreover, the Trial Court found that the expert’s required flat fee was unreasonable. While the Court acknowledged that other neurological surgeons in the area may charge similar fees, it did not agree that this created a presumption of the fee’s reasonableness. The more pressing issue is whether it is reasonable to require the opponent, who did not select the expert, to pay his or her fee. In particular, the Trial Court rejected the “notion” that an expert may charge a flat fee, rather than an hourly fee, for his or her deposition testimony. The Trial Court ultimately concluded that the expert was entitled to reimbursement for his deposition testimony in the amount of $750 per hour.
Jusino is significant because it addresses two issues that often arise during civil litigation: (1) whether an expert can charge a flat fee for attending the deposition; and (2) how does a court calculate a reasonable hourly rate for an expert attending a deposition. This decision represents the first decision in New Jersey to thoroughly define a “reasonable fee” for an expert’s deposition and to adopt the Federal standards. Moreover, it signals a departure from a flat fee for an expert’s discovery deposition testimony, particularly in simple cases. While a Trial Court’s opinion, such as Jusino, is not binding, it should be considered persuasive authority, and be taken into consideration by other New Jersey Courts when faced with similar issues. It remains to be seen whether Jusino will be appealed, or uniformly followed in this jurisdiction; however, for at least the time being, it provides detailed guidance to be considered when dealing with opposing experts who seek to charge onerous fees for their participation in litigation.
 Russ M. Patane, Esq. is a Shareholder in GRSLB&G’s Litigation Department. He defends a wide variety of clients in various civil actions brought forth in New Jersey and New York State and Federal Courts. Russ can be reached at email@example.com.
 Erin L. Peters, Esq. is an Associate in GRSLB&G’s Litigation Department. She defends a wide variety of clients in various civil actions brought forth in New Jersey State and Federal Courts. Erin can be reached at firstname.lastname@example.org.