Clark et al v. Lartigue et al

Filing 40

ORDER granting 37 Motion To Set Expert's Deposition Fee. The expert fee of Dr. Michael Berard is REDUCED to $1000.00. Signed by Magistrate Judge Carol B Whitehurst on 11/17/2016. (crt,Chicola, C)

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
Amanda Clark, et al.

Civil Action No. 6:15-cv-2409

versus

Judge Rebecca F. Doherty

Neal Lartigue, et al.

Magistrate Judge Carol B. Whitehurst
ORDER

Before the Court is an Unopposed Motion to Set Expert’s Deposition Fee, filed
by Defendants the City of Ville Platte and Chief Neal Lartigue, individually and in his
official capacity as Chief of Police of the City of Ville Platte (collectively
“Defendants”). (Doc. 37.) For the following reasons, the undersigned hereby grants
the motion.1
Background
Plaintiffs Amanda Clark, Joanie Fontenot, and Deveon Brister (collectively
“Plaintiffs”) have filed this action for damages against Chief Lartigue, the City of
Ville Platte, and Officer Larry Paul Fontenot. (Doc. 1.) Plaintiffs allege that, in the
early morning hours of August 15, 2015, Plaintiffs Clark and Brister suffered a flat tire
on their vehicle as they were traveling home. Plaintiff Fontenot stopped to assist her
two friends with changing the tire. Plaintiffs’ allegations reflect that Officer Fontenot
arrived on the scene and subjected them to conduct of an inappropriate sexual nature.

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In light of this Order, the December 21, 2016 hearing on Defendants’ Motion to Set
Expert’s Deposition Fee is hereby CANCELLED.

Plaintiffs’ allegations further reflect that Officer Fontenot shared pictures of
Plaintiff Clark in compromising positions with other officers and that Officer Fontenot
had a history of circulating compromising photographs of women with other officers.
As alleged in the complaint, Plaintiff Clark filed a grievance with the Ville Platte
Police Department regarding Officer Fontenot and sought to schedule multiple
appointments with Chief Lartigue. However, Chief Lartigue allegedly cancelled every
appointment. Nevertheless, after Plaintiffs Clark and Fontenot provided statements
to the Evangeline Parish Sheriff’s Officer, Officer Fontenot was arrested and charged
with extortion, video voyeurism, and three counts of malfeasance in office. Based on
the foregoing allegations, Plaintiffs assert violations of their Fourth and Fourteenth
Amendment rights.
Defendants’ Motion to Set Expert Deposition Fee
Defendants move the Court to set the expert’s deposition fee at a reasonable
amount. (Doc. 37.) In this regard, Defendants state that they recently spoke to the
staff of Plaintiffs’ treating physician, Dr. Michael Berard, about possible dates for a
deposition. Dr. Berard’s staff informed defense counsel that the doctor’s deposition
fee would be $5,000.00 for the first hour of the deposition, and an additional $200 per
hour, per patient after the first hour. Defendants assert that Dr. Berard’s deposition
fee request is unreasonable.

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Federal Rule of Civil Procedure 26(b)(4)(E) provides that, unless manifest
injustice would result, courts require that the party seeking discovery pay the expert
a reasonable fee for the time spent responding to discovery. “Compensating an expert
for his deposition time is mandatory under [this rule] because it would be unfair to
require one party to subsidize discovery for the opposing party.” Harvey v. City of
Rayne, ABC Ins. Co., No. 08-0699, 2009 WL 3756492, at *1 (W.D. La. Nov. 5, 2009)
(citing Royal Maccabees Life Ins. Co. v. Malachinski, No. 96-C-6135, 2000 WL
1377111, *5 (N.D. Ill. 2000)). The mandatory nature of Rule 26(b)(4)(E) expressly
provides two limitations: (1) the costs may not be imposed if doing so would result in
manifest injustice; and (2) the expert's fee must be reasonable. Harvey, 2009 WL
3756492 at *1. Thus, the district court has discretion to limit or alter a party’s
requested discovery costs if they appear to be unreasonable. See Knight v. Kirby
Inland Marine Inc., 482 F.3d 347, 356 (5th Cir. 2007).
A review of the medical records submitted by Defendants reveals that Dr.
Berard: (2) saw Plaintiff Clark on three occasions, consisting of two visits with regard
to completing her evaluation along with one additional visit (Doc. 37-3 at pp. 22-32,
57); (2) saw Plaintiff Fontenot on two occasions with regard to completing her
evaluation (Doc. 37-4 at pp 22-31); and (3) provided Plaintiff Brister with a “collateral
consultation” (Doc. 37-3 at pp. 33-37.) Defendants contend that preparation time for
the deposition, as well as the time for providing the deposition testimony, will be

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minimal and will last around an hour. Plaintiffs have not responded to Defendants’
motion to dispute whether Dr. Berard’s deposition will last only one hour.
After reviewing Defendants’ motion and attached medical records, the Court
finds that Dr. Berard’s requested deposition fee of $5,000.00 for the first hour of the
deposition, and an additional $200.00 per hour (per patient after the first hour), is
unreasonable and unjustified. The medical records show that Dr. Berard met with
Plaintiffs on a limited basis and provided routine evaluations of Plaintiffs Clark and
Fontenot as well as a collateral consultation with Plaintiff Brister. Dr. Berard’s
exorbitant fee request would result in a manifest injustice by unfairly and
unreasonably depleting Defendants’ resources. The undersigned concludes, instead,
that $1000.00 constitutes a reasonable amount for Dr. Berard’s fee, and his fee is
reduced accordingly.

Should Dr. Berard refuse to appear voluntarily for his

deposition, counsel is free to issue a subpoena to compel Dr. Berard’s appearance.
Conclusion
Accordingly, it is hereby ORDERED that Defendants’ Unopposed Motion to
Set Expert’s Deposition Fee (Doc. 37) is GRANTED. The expert fee of Dr. Michael
Berard is REDUCED to $1000.00.
THUS DONE AND SIGNED at Lafayette, Louisiana, this 17th day of
November, 2016.

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