Cottrell v. Bunn-O-Matic Corporation
RULING granting in part 72 Motion to Determine Reasonable Fee for Defendant's Expert. Signed by Judge Holly B. Fitzsimmons on 4/21/2014. (Katz, Samantha)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
CIV. NO. 3:12CV1559 (WWE)
RULING ON PLAINTIFF‟S MOTION TO DETERMINE REASONABLE FEE
FOR DEFENDANT‟S EXPERT [Doc. #72]
In this action, plaintiff Alexandria Cottrell asserts
product liability claims against defendants Bunn-O-Matic
Corporation and National DCP, LLC. [Sec. Amended Compl., Doc.
Plaintiff‟s claims arise from injuries she sustained from
using an allegedly defective and unreasonably dangerous coffee
On January 16, 2014, defendant Bunn-O-Matic
disclosed its “product failure and warning expert,” Steven
Plaintiff noticed Mr. Pietropaolo‟s
deposition for April 25, 2014.
In advance thereof, plaintiff
received Mr. Pietropaolo‟s fee schedule which seeks to charge
plaintiff a flat rate of $2,500.00 for a half-day of deposition
(four hours or less), and $5,000.00 for a full-day deposition.
Plaintiff moves for an order setting a reasonable fee for Mr.
Pietropaolo‟s appearance at his deposition. [Doc. #72].
reasons that follow, the Court GRANTS in part plaintiff‟s
Plaintiff argues that Mr. Pietropaolo‟s claimed testimony
fee is “absurdly high” and amounts to $625.00 per hour, assuming
that his deposition lasts four (4) hours. Plaintiff does not
seek to avoid her obligations to pay Mr. Pietropaolo‟s fees, but
requests that the Court set his hourly deposition rate in line
with that charged by plaintiff‟s expert, namely $255.00 per
Defendant objects to plaintiff‟s motion, and argues that
Mr. Pietropaolo‟s fee for testimony is reasonable and
commensurate with his experience. Defendant also argues that “it
is customary, usual and reasonable for an expert to demand
higher fees for testimony, which is more stressful, partly due
to its adversarial nature, and requires a higher level of
preparation and precision.” [Doc. #75, 6].
Rule 26 states that “[a] party may depose any person who
has been identified as an expert whose opinions may be presented
at trial.” Fed. R. Civ. P. 26(b)(4)(A). Federal Rule of Civil
Procedure 26(b)(4)(E)(i)1 mandates that “[u]nless manifest
injustice would result, the court must require that the party
seeking discovery: pay the expert a reasonable fee for time
spent in responding to discovery under Rule 26(b)(4)(A) or (D)
The underlying purpose of Rule 26(b)(4)(E) “is to
compensate experts for their time spent participating in
litigation and to prevent one party from unfairly obtaining the
benefit of the opposing party‟s expert‟s work free of cost.”
Goldwater v. Postmaster Gen., 136 F.R.D. 337, 339 (D. Conn.
1991) (citations omitted); Almonte v. Averna Vision & Robotics
Inc., No. 11-CV-1088S(Sr), 2014 WL 287586, at *3 (W.D.N.Y. Jan.
Despite there being “very little authority as to
what is meant by the term „a reasonable fee‟ in Rule
26(b)(4)[(E)]”, Courts in the Second Circuit generally consider
Federal Rule of Civil Procedure 26(b)(4)(E) was formerly Rule 26(b)(4)(C).
the following six (6) factors in determining reasonableness
under Rule 26(b)(4)(E):
(1) the witness‟s area of expertise; (2) the education
and training that is required to provide the expert
insight which is sought; (3) the prevailing rates of
other comparably respected available experts; (4) the
complexity of the discovery responses provided; (5)
the cost of living in the particular geographic area;
and (6) any other factor likely to be of assistance to
the court in balancing the interests implicated by
Goldwater, 136 F.R.D. at 339-40; Almonte, 2014 WL 287586, at *3
(citation omitted); Ortiz v. Aircraft Serv. Int‟l, No. 12 CV
3233(ENV)(RML), 2013 WL 5307995, at *1 (E.D.N.Y. Sept. 19, 2013)
“In addition, courts look to (1) the fee
actually being charged to the party who retained the expert; and
(2) fees traditionally charged by the expert on related
matters.” Conte v. Newsday, Inc., No. CV 06-4859(JFB)(ETB), 2012
WL 37545, at *2 (E.D.N.Y. Jan, 9, 2012) (citation omitted).
Defendant submits that Mr. Pietropaolo is an expert in the
field of forensic investigations of product defects and
accident/injuries, and electro/mechanical system failures. [Doc.
#75, 3; #75-3, 2-3].
Pursuant to his curriculum vitae, Mr.
Pietropaolo is a Licensed Professional Engineer (P.E.), with
over “twenty five (25) years of hands on engineering experience
including, electrical, mechanical, materials, safety, fire
protection and instruction.” [Doc. #75-4, 1].
received his bachelor degree of engineering in 1987 and a
masters degree of mechanical engineering in 1999, both from
Manhattan College. [Id.]. Mr. Pietropaolo is a licensed engineer
in the states of New York, Connecticut, New Hampshire, Florida,
Vermont, and Delaware. [Id.]. In addition to numerous
certifications, Mr. Pietropaolo is also a member of several
professional organizations, including the American Society of
Mechanical Engineers. [Id. at 1, 10].
expertise and training are clear in light of his impressive and
detailed curriculum vitae.
The Court next considers the prevailing rates of other
comparable experts. Plaintiff‟s expert Peter Chen, also a
Licensed Professional Engineer, charges $255.00 per hour for all
services. Other engineers in Mr. Chen‟s firm charge up to
$360.00 per hour. [Doc. #72, 7].
Mr. Chen is located in
Shelton, Connecticut. By contrast, Mr. Pietropaolo customarily
seeks $2,500.00 for a half day of testimony (anything less than
four hours), and $5,000.00 for an entire day of testimony. Mr.
Pietropaolo‟s hourly deposition rate, assuming he testifies for
an entire four (4) or eight (8) hours amounts to $625.00 per
Although Mr. Pietropaolo seeks a flat rate for his time
testifying, he otherwise charges $350.00 per hour for his time.
[Doc. #75-6]. Mr. Pietropaolo is billing defendant $350.00 for
his work. [Doc. #75-3, 3]. Mr. Pietropaolo‟s firm is located in
North White Plains, New York.2
Mr. Pietropaolo‟s expert investigation included the review
of documents, participation in a “group exam” of the subject
coffee maker at the premises where plaintiff‟s injury occurred,
and “extensive testing of an exemplar machine” on two separate
dates. [Doc. #75-3, 4-5].
The Court will take judicial notice that North White Plains, New York is
closer to New York City than Shelton, Connecticut, and that generally cost of
living is higher for areas closer in proximity to New York City.
In light of the foregoing factors, the Court finds that Mr.
Pietropaolo‟s flat rate for deposition testimony is
See, e.g., Mannarino v. United States, 218 F.R.D.
372, 374-75 (E.D.N.Y. 2003) (finding unreasonable a flat rate of
$3,000.00 per day or, part thereof, for expert‟s testimony);
Almonte, 2014 WL 287586, at *3 (finding hourly deposition rate
of more than $540.00 unreasonable). Although experts may charge
more for their time testifying, “Courts expect some reasonable
relationship between the services rendered and the renumeration
to which the expert is entitled.” Almonte, 2014 WL 287586, at *3
(citing Mannarino, 218 F.R.D. at 375).
“By its nature, a flat
fee runs counter to this principle.” Id.
The Court acknowledges
that Mr. Pietropaolo has, at least since 2007, charged a flat
rate per day or half day of testimony. [Doc. #75-6].
like the Court in Mannarino, this Court is not persuaded by the
fact that other opposing parties may have paid flat rates to
take Mr. Pietropaolo‟s deposition. See Mannarino, 218 F.R.D. at
375 (“That other parties in other cases have not objected to
[the expert‟s flat rate] has no bearing on whether it is fair to
plaintiff in this case.”).
“While a party may contract with any expert it chooses, the
court will not automatically tax the opposing party with any
unreasonable fees charged by the expert.”
Almonte, 2014 WL
287586, at *3 (quoting Reit v. Post Props., Inc., No. 09 Civ.
5455, 2010 WL 4537044, at *2 (S.D.N.Y. Nov. 4 2010)). Therefore,
in light of the above case law, the documentation provided by
defendant, and the other factors considered, the Court finds
that $425.00 is a reasonable hourly deposition rate, and that
Mr. Pietropaolo should be compensated accordingly.
further disputes arise regarding Mr. Pietropaolo‟s claimed fee,
the parties should contact the Court for a telephone conference.
For the reasons set forth herein, the plaintiff‟s motion to
determine reasonable fee for defendant‟s expert [Doc. #72] is
GRANTED in part.
This is not a Recommended Ruling. This is a discovery
ruling or order which is reviewable pursuant to the “clearly
erroneous” statutory standard of review. 28 U.S.C. §
636(b)(1)(A); Fed.R.Civ.P. 72(a); and D. Conn. L. Civ. R. 72.2.
As such, it is an order of the Court unless reversed or modified
by the district judge upon motion timely made.
ENTERED at Bridgeport, this 21st day of April 2014.
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE
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