Leaks et al v. Target Corporation
Filing
34
ORDER granting 29 Motion ; granting 26 Motion to Compel. The Court will allow the parties 30 additional days to complete discovery. Signed by Magistrate Judge G. R. Smith on 1/30/15. (wwp)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
LATISHA LEAKS and BENJAMIN
LEAKS,
Plaintiffs,
v.
Case No. CV414-106
TARGET CORPORATION,
Defendant.
)
)
ORDER
In this slip-and-fall case plaintiffs filed a “motion to compel/motion
to serve additional interrogatory.” (Doc. 26.) The interrogatory reads:
“State Target’s understanding as to how the liquid on which Mrs.
LaTisha Leaks slipped came to be on the floor.” ( Id. at 11.) Target
insists it will not respond because the parties have already exceeded the
“statutory limit” when subparts are counted, though it acknowledges
that “the case law is somewhat ambiguous regarding counting
subparts”. (Doc. 30 at 2.)
Having reviewed the interrogatories, the Court finds that the vast
majority do not include the kinds of subparts that violate the spirit of
the Fed. R. Civ. P. 33(a)(1) 25-interrogatory limit.
(Doc. 30-1.)
Furthermore, there are two plaintiffs and each is entitled to serve 25
interrogatories. Fed. R. Civ. P. 33(a)(1) (allowing every party to serve
25 interrogatories upon every other party). Defendant’s contention that
it need not respond to this one, highly relevant interrogatory on the
basis that it exceeds the 25-interrogatory limit is frivolous.
Consequently, plaintiffs’ motion to compel (doc. 26) is GRANTED .
In addition to plaintiffs’ motion, defendant has filed a motion to
determine the reasonable deposition fees of plaintiffs’ doctors. (Doc. 29.)
Defendant asserts that $1,500 per hour is excessive when other
orthopedic surgeons charge half that. ( Id. at 2.) Plaintiffs take no
position on the matter. (Doc. 32.)
According to the Federal Rules of Civil Procedure, “[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).” Fed. R. Civ. P.
26(b)(4)(E). Defendant does not dispute that a fee should be paid, but
it insists that $750.00 per hour is more in line with what is charged by
qualified physicians in this community. It has submitted an affidavit
from Dr. H. Clark Deriso, an orthopedic surgeon who has practiced in
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the Savannah area since 1975, showing that he charges $750 per hour
when deposed and that, in his opinion, $1,500 is excessive. (Doc. 29-4.)
A reasonable fee is within the Court’s discretion.
E.g. , Cruz v.
Home Depot, USA, Inc. , 2011 WL 4836239 (M.D. Fla. Oct. 12, 2011).
Courts frequently consider the “the prevailing rates of other comparably
respected available experts” in fixing a reasonable fee.
Putnal v.
Guardian Life Ins. Co. , 2005 WL 3532381 at *2 (M.D. Ga. Dec. 22, 2005)
(internal quotation marks omitted)). Given that other highly qualified
physicians charge substantially less than the rate sought by plaintiffs’
specialists, the Court agrees that $1,500 per hour is excessive and that
$750 per hour is reasonable in this market. Accordingly, defendant’s
motion (doc. 29) is GRANTED .
Finally, the parties’ have jointly filed their third motion to extend
the discovery period. (Doc. 33; docs. 12 & 28 (earlier discovery
extension motions).) Discovery was initially set to expire on October 9,
2014. (Doc. 8.) On August 7, 2014, the Court extended the discovery
period through December 9, 2014. (Doc. 13.) Then, it granted a second
extension through February 9, 2015. (Doc. 31.) Having granted the
parties an additional four months to complete discovery, the Court hand
wrote on the second amended scheduling order that there would be “No
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further extensions.” ( Id. at 2.)
Defendant states that it has deposed both plaintiffs and two of
Mrs. Leaks’ treating physicians, but it still needs to depose one treating
physician. (Doc. 33 at 1.) Plaintiffs state that they still need to take the
depositions of several employees. ( Id. ) Both parties represent that they
need to schedule the depositions of their retained experts. ( Id. ) The
parties offer no explanation for their failure to complete discovery over
the past eight months. The Court, however, recognizes its own delay in
addressing the parties’ dispute regarding the single interrogatory
discussed above. Accordingly, it will allow the parties 30 additional
days (through March 11, 2015) to complete all outstanding discovery.
All other remaining deadlines are also extended by 30 days.
SO ORDERED, this 30th day of January, 2015.
LTNITED STATES MAGISTRATE JUDGE
SOUThER}'T DISTRICT OF GEORGIA
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