Depositions Not Meant to be Jackpot for Expert Witnesses

Submitted by New Jersey Civil Lawyer, Jeffrey Hark.

Jusino v. Lapenta, decided May 23, 2014, by the Law Division in Atlantic County, is a case about a previously unanswered question in New Jersey case law–what is a reasonable expert fee? The underlying case concerns a car accident in which a permanent injury of the plaintiff was proximately caused by the accident. The plaintiff hired a neurosurgeon as an expert witness who concurred that she suffered a permanent injury and it was proximately caused by the crash. The defendant notified the plaintiff of his intent to take the deposition of the expert, and the plaintiff claimed the fee of her expert was :

  1. $1000 per hours with a minimum of $3000
  2. + $500 preparation fee
  3. + additional costs for excessive time spent (to be determined after the fact)

Rule 4:10-2(d)(2) simply provides that a “reasonable” fee for an expert deposition should be applied, but does not define “reasonable.” The only case in New Jersey that even touches on the issue is Johnston v. Connaught Labs is from 1985. So, the court decided to look at federal cases analyzing Federal Rule of Civil Procedure 26(b)(4)(E) which has very similar language to the N.J. rule. Though federal cases outside of the Supreme Court’s interpretation of the Constitution are not binding, they may be persuasive. the court chose to look to Goodwater v. Postmaster General of United States, a case from 1991. It outlined the following factors to determine whether a fee is reasonable:

  1. expert witness area of expertise
  2. education/training
  3. rates of comparable experts
  4. complexity of discovery responses
  5. fee being charged by expert to retaining party
  6. traditional fees

In this case, the court examined other N.J. neurosurgeons and found they charged similar fees. However, the court still determined the fee was not reasonable due to the preparation fee, “blank check” fees for possible excessive costs, and the fact the hourly rate was much higher than a surgeon may normally earn. Therefore the court reduced the fee to $750 per hour (regardless of how much of the hours is used).

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