Gray v. California Dept of Corrections and Rehabilitation et al

Filing 118

ORDER signed by Magistrate Judge Edmund F. Brennan on 10/7/2014 ORDERING that reasonable rates for Adler's deposition consist of $333 per hour in preparation time and $500 per hour in deposition time.(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LEON GRAY,

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No. 2:10-cv-1928-TLN-EFB P
Plaintiff,

v.

ORDER

DAGE,
Defendant.

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On July 24, 2014, the court granted defendant’s motion to compel the deposition of

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plaintiff’s expert witness, Dr. Paul Adler, but ordered that defendant shall pay a “reasonable fee”

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for Dr. Adler’s preparation for and testimony at the deposition. ECF No. 110. The court

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determined that Dr. Adler’s fee for attending the deposition may include the actual time spent

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being deposed, and up to five and one-half hours of preparation time (including one and a one-

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half hours conferring with counsel). ECF No. 110 at 2. The court also instructed plaintiff to

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submit appropriate documentation necessary to enable the court to determine the amount of a

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reasonable fee for Dr. Adler for purposes of Rule 26(b)(4)(E)(i) of the Federal Rules of Civil

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Procedure. Thus, plaintiff was instructed to file:

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. . . a sworn declaration signed by Dr. Adler as to prevailing market rates. That
declaration . . . shall substantiate Dr. Adler’s proposed rates of $465 per hour in
preparation time (see ECF No. 107, Ex. B) and $750 per hour in deposition time
(see id.). The declaration shall also disclose the case numbers and the rates
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charged and received by Dr. Adler in the San Diego case (see id. at 4) and the San
Francisco case, Ayala v. CDCR (see id., Ex. A).

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ECF No. 110 at 2. In response, plaintiff filed Dr. Adler’s declaration.1 ECF No. 114. However,

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the declaration does not substantiate that the hourly rates requested here for the deposition and

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preparation are reasonable. Therefore, for the reasons explained below, the court has determined

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that the lower hourly rates set forth below are reasonable and are adopted for the purposes of Rule

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26(b)(4)(E)(i).

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Determining what constitutes a “reasonable fee” for an expert witness at deposition is

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within the court’s discretion. Edin v. Paul Revere Life Ins. Co., 188 F.R.D. 543, 545–46 (D. Ariz.

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1999). Relevant factors include (1) the witness’s area of expertise, (2) the education and training

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required to provide the expert insight that is sought, (3) the prevailing rates of other comparably

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respected available experts, (4) the nature, quality and complexity of the discovery responses

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provided, (5) the fee actually being charged to the party who retained the expert, (6) fees

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traditionally charged by the expert on related matters, and (7) any other factor likely to be of

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assistance to the court in balancing the interests implicated by Rule 26. Id. at 546. The party

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seeking reimbursement of the expert witness’s fee has the burden of establishing that the fee is

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reasonable. Guantanamera Cigar Co. v. Corporacion Habanos, S.A., 729 F. Supp. 2d 246, 255

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(D.D.C. 2010).

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Having considered the relevant factors in connection with Adler’s declaration, the court

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concludes that the rates sought for Adler’s fees are not reasonable. Adler’s area of expertise,

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experience and training, is similar to that of the other expert plaintiff has retained in this case, Dr.

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Bruce Lasker. See ECF No. 105-2 (plaintiff’s witness designation and disclosure). Dr. Lasker’s

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deposition fee consists of $500 per hour, which is slightly higher than the average hourly

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deposition rate of $427, and is identical to the rate Adler claims to have charged in the Ayala

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case. ECF No. 105-1, ¶ 3. The court also notes that defense counsel was willing to pay Adler

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The declaration indicates that Paul Adler holds a Doctor of Medicine (M.D.) degree.
However, Plaintiff’s designation of experts identifies Dr. Adler as holding a Doctor of
Osteopathic Medicine (D.O.) degree. See ECF No. 105-2 at 8 & 11.
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$1,000 in anticipation of two hours of deposition testimony. ECF No. 105 at 4. Given the scant

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record presented by plaintiff, the court cannot conclude that a preparation rate in excess of $333

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an hour, or a deposition rate in excess of $500 an hour, is reasonable.2

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First, Dr. Adler’s declaration does not provide evidence as to the prevailing market rates

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of comparably available experts. Instead, Adler states that he looked into “rates charged by

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experts in general.” See ECF No. 114, ¶ 9. His research led him to a 2014 survey, which shows

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that the average hourly preparation time fee for “all experts” is $333, and the average hourly

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deposition fee for “all experts,” is $427. Id., Ex. B. Adler’s proposed rates of $465 per hour in

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preparation time and $750 per hour in deposition time significantly exceed (i.e. almost double)

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those averages. While there may be satisfactory explanations for why that is the case, none have

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been offered notwithstanding the court’s request for documentation sufficient to establish a

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reasonable fee.

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Second, although the court instructed plaintiff to provide the case number and the rates

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charged and received by Dr. Adler in a case based in San Diego, Adler’s declaration makes no

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reference to a San Diego case. The court requested that information in light of plaintiff’s

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representation that Dr. Adler had been “recently retained by the County of San Diego in [ ]

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another case, and they agreed to pay the exact same rates as those being demanded in this case.”

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ECF No. 107 at 4. These representations remain unsubstantiated and cannot support the claim for

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reimbursement here.

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Third, Dr. Adler’s declaration also fails to satisfy the court’s request for specific

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information regarding the San Francisco case, referred to by plaintiff only as Ayala v. CDCR.

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Adler states that he does not keep any documents or records following the conclusion of cases for

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which he is retained.3 ECF No. 114, ¶ 3. Thus, Adler states that he is unable to provide “precise

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case information (such as specific case name and case number). Id. Defendant, however, has

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It is not apparent from the record how much Dr. Lasker charged in preparation time.

Rule 26(a)(2)(B) requires that an expert witness make available information regarding
his qualifications, including a “list of all other cases” in which he has testified as an expert at trial
or by deposition within “the preceding 4 years.”
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been able to locate a specific case name and number, which is Ayala v. Ayers, No. 3:10-cv-0979

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(N.D. Cal.). ECF No. 115 at 5, ¶ 4. Defendant has submitted an excerpt from Dr. Adler’s

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curriculum vitae that was produced in that case. It states “My compensations from AMFS[4] is

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approximately $300/hour. I have not received any compensation at this point.” ECF No. 116 at

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3. However, Adler’s recent declaration states that he has no records of the billing in that matter.

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He did, however, contact AMFS and was informed that AMFS charged the hourly rate of $500

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for Adler’s services in Ayala. Thus, if both representations are credited, the expert witness

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service company, AMFS, charged the defendant the rate of $500 but compensated Adler the rate

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of $300. But no declaration has been submitted by AMFS to confirm the matter.

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The court is left with Adler’s unsubstantiated explanation of the rates charged in two of

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his “other cases over the last two years” and the representation that the services rendered in those

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cases is “similar” to that in question here. While it is certainly reasonable to infer that AMFS

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would have necessarily billed Adler’s time at a rate higher than what is was actually paying Dr.

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Adler, documentation of the actual amount paid to AMFS for Adler’s services in missing from

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plaintiff’s supporting papers. Thus, there is a factual basis for some undocumented hourly rate in

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an amount in excess of $300 and potentially as high as $500, but the higher end is nonetheless

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unsupported by documentation.

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The other evidence before the court is the representation in Adler’s declaration that the

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average hourly preparation rate for experts is $333, and the average hourly deposition rate is

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$427. Although plaintiff’s evidence as fee paid for comparable services in the deposition of Dr.

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Lasker, a similar rate here ($500) is reasonable for Adler’s time in the deposition. However,

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given the concession that $333 is an average rate for preparation time and the plaintiff’s failure to

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provide any further evidence warranting a higher amount, the court adopts that “average” as a

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reasonable hourly rate for Dr. Adler’s preparation for the deposition.

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According to Adler’s declaration and its attachments, AMFS/Medical Experts
Nationwide is a company that retained Adler to work as an expert witness on behalf of the CDCR
in the Ayala case. ECF No. 114 at 1 – 2, ¶ 1. A declaration by a California Deputy Attorney
General who was assigned to that case clarifies that Adler was retained on behalf of a former
contract employee at San Quentin State Prison who was a defendant in that case. ECF No. 116 at
1 – 2, ¶ 3.
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Accordingly, IT IS HEREBY ORDERED that reasonable rates for Adler’s deposition

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consist of $333 per hour in preparation time and $500 per hour in deposition time.

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DATED: October 7, 2014.

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