Deposition of Personal Injury Experts Only Requires Reasonable Fees

Jusino v. Lapenta, 442 N.J. Super. 248 (N.J. Super. Law. Div. 2014)

December 10, 2020

Submitted by New Jersey Personal Injury Lawyer, Jeffrey Hark.

In a published decision, Judge James Savio, J.S.C., issued a decision regarding fees experts can charge the party taking their deposition in personal injury matters.

In Jusino, plaintiff was operating a motor vehicle that was involved in an accident with a vehicle operated by defendant. Plaintiff alleges that the defendant negligently operated his motor vehicle and that his negligence was a proximate cause of the accident. Plaintiff claims that as a proximate result of the accident, she suffered a permanent injury and she seeks compensation for her injuries from the defendant.

Plaintiff filed suit. In pretrial discovery, plaintiff named Andrew S. Glass, M.D., a Board Certified Neurological Surgeon, as an expert witness. Glass authored a number of medical reports describing the care and treatment he administered to plaintiff for the injuries he opines she suffered as a result of the accident of October 20, 2010. Glass supports plaintiff’s assertion that she suffered a permanent injury proximately caused by the accident of October 20, 2010.

In accordance with Rule 4:14–7(b)(2), the defendant notified plaintiff of an intent to take the discovery deposition of Glass. Defendant requested plaintiff provide proposed dates for the proceeding and Glass’s fee schedule for attending a discovery deposition. In response, plaintiff indicated that Glass’s current fee for attending a discovery deposition is $1000 per hour with a minimum fee of $3000 as well as a $500 preparation fee, but “excessive medical records and excessive time requirement fees may apply.” In other words, the fee for preparation of the deposition may be $500 unless Glass determines that excessive medical records and excessive time is required to prepare for the deposition. The term “excessive” is not defined in the statement submitted by Glass.

Defendant refused to pay for any of the preparation time and protested the amount of the attendance fee charged by Glass. Defendant asserted that “Best Practices” establishes a fee schedule that suggests that the fee for taking the discovery deposition of an expert should be between $300 and $400 per hour. When plaintiff refused to produce Glass for the discovery deposition unless defendant agreed to pay Glass his proposed attendance fee in advance of the deposition, defendant moved to have the court set the fee for Glass to attend the deposition.

The Court noted:

Rule 4:10–2(d)(2) provides:

. . . unless otherwise ordered by the court, the party taking the deposition shall pay the … a reasonable fee for the appearance, to be determined by the court if the parties and the expert … cannot agree on the amount therefor. The fee for the witness’s preparation for the deposition shall, however, be paid by the proponent of the witness, unless otherwise ordered by the court.

[ Rule 4:10–2(d)(2) (emphasis added) ].

The Court ruled

The party who plans to take the discovery deposition of an adversary’s expert witness cannot be compelled to agree to provide a blank check payable to the expert for the time the expert determines is required to prepare for the deposition. Furthermore, Rule 4:10–2(d)(2) places the obligation to pay the fee for the preparation of the experts deposition on the proponent and the court has not been supplied with any information that would justify treating the obligation to pay for preparation in this case any differently than any other case. Therefore, the responsibility for paying Glass for his time in preparing for the discovery deposition shall rest with plaintiff.

The issue is not how much money the expert charges for attending the deposition or what the majority similarly credentialed experts charge but what is a reasonable amount of money for opponent to pay the expert for attending the deposition.

The burden of establishing that the fee is reasonable rests with party proposing the expert for their case.

The Court denied plaintiff’s argument that the expert’s proposed fee was to be payable in full by defendant. Instead, the Court reduced the fee to $750 per hour.

Expert depositions are a crucial part of personal injury matters.  Experts may charge a fee to attend depositions, and many experts propose fees that exceed $1,000 per hour or more, and can sometimes require several hours prepaid upfront.  The party taking the deposition may not be required to pay the entire fee, as they are only required to pay a reasonable fee. An experienced personal injury attorney can make a motion to reduce the expert fee to one that is reasonable, saving you expense and putting more money in your pocket from a settlement or verdict.

For personal injury matters, you pay nothing upfront, and our fee is paid as a percentage of your recovery. At Hark & Hark, we represent clients for any case in any county in New Jersey including Atlantic, Burlington, Camden, Cape May, Cumberland, Essex, Gloucester, Mercer, Ocean, and Salem counties.