Farace et al v. American Airlines, Inc. et al

Filing 22

ORDER Granting 18 Motion for Order Fixing Expert Witness Fee at the rate of $300.00 per hour for the time actually spent in deposition and his travel time to and from the site of the deposition. Signed by Magistrate Judge Lawrence R. Leavitt on 8/29/11. (Copies have been distributed pursuant to the NEF - ASB)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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NORA FARACE, et al.,

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Plaintiffs,

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v.

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AMERICAN AIRLINES, INC., et al.,

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Defendants.

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2:10-cv-00724-KJD-LRL
ORDER

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This case comes before the court on defendant American Airlines’ Motion for Order Fixing

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Expert Witness Fee (#18). The court has considered the motion, plaintiffs’ Response (#19), and the

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Reply (#20) of defendant American Airlines (hereafter American).1

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This is a personal injury action in which plaintiff Nora Farace alleges that she was injured when

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she tripped and fell on a “jet bridge” or “jetway” between an American aircraft and the terminal gate

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at McCarran International Airport. She alleges that the unevenness of the walking surface of the jetway,

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and the lack of adequate warnings, posed an unreasonable danger to departing passengers. Plaintiffs

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have retained a safety engineer, one Lewis Barbe, who inspected the jetway at issue, and who prepared

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a report critical of American. American wishes to depose Mr. Barbe, and is willing to do so in Edina,

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Minnesota, where Mr. Barbe’s consulting service is located. American objects, however, to Mr. Barbe’s

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“exorbitant fee”: $2,800 flat fee for a minimum of four hours, to be paid in advance. Motion (#18) at

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2. American represents that the deposition will not take more than two hours. American therefore

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believes Mr. Barbe’s fee is excessive and unreasonable. At American’s request, counsel for plaintiffs

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discussed the issue with Mr. Barbe, who, according to plaintiffs’ counsel, declined to modify the fee

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Disappointingly, neither party cites supporting case law.

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and explained that “this fee is based on a daily rate and includes the time needed to prepare for his

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deposition, the time to attend the deposition and the time to travel to and from the deposition.” Response

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(#19) at 1-2. Plaintiffs take no position on the reasonableness of Mr. Barbe’s demand.

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Fed.R.Civ.P. 26(b)(4)(E) provides that “[u]nless manifest injustice would result, the court must

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require that the party seeking discovery ... pay the expert a reasonable fee for time spent in responding

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to discovery under Rule 26(b)(4)(A) or (D).” “An expert’s hourly rate for professional services is

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presumptively a reasonable hourly rate for deposition.” Barrett v. Nextel Communications, Inc., 2006

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WL 374757 (E.D. Mich. 2006). Several factors may be relevant in determining a reasonable fee for an

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expert: “(1) the witness’s area of expertise; (2) the education and training that is required to provide the

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expert insight which is sought; (3) the prevailing rates of other comparably respected available experts;

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(4) the nature, quality and complexity of the discovery responses provided; (5) the fee actually being

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charged to the party who retained the expert; (6) fees traditionally charged by the expert on related

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matters; and (7) any other factor likely to be of assistance to the court in balancing the interests

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implicated by Rule 26.” U.S. Energy Corp. v. Nukem, Inc., 163 F.R.D. 344, 345-46 (D.Colo. 1995).

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Of course the expert’s fee should not be so high as to impair a party’s access to necessary discovery or

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result in a windfall to the expert. Mathis v. NYNEX, 165 F.R.D. 23, 24 (E.D.N.Y. 1996).

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Other than what Mr. Barbe is demanding to be paid in advance for his deposition testimony,

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counsel have provided the court no information about him, including the extent of his education and

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experience, the fee rate he is charging plaintiffs, whether the subject matter of his anticipated deposition

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testimony is unusually complex, and the fees he charges on related matters. Nor has the court been

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made aware of the prevailing rates charged by other comparably respected experts. The court assumes,

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however, and there is no showing otherwise, that as a consulting engineer Mr. Barbe is “not like the

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physician who may have to block out time when he or she could see patients,” and therefore may be

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justified in charging a flat rate fee for his or her deposition. Massasoit v. Carter, 227 F.R.D. 264, 267

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(M.D.N.C. 2005)(finding exorbitant a flat rate fee of $2,000 for a deposition, “which could amount to

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over $600 per hour”).

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The court finds that the flat rate fee Mr. Barbe is demanding in this case is inappropriate,

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unreasonable, and excessive. If the deposition were to last two hours, as American says, Mr. Barbe’s

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fee would be $1,400 per hour, which is indisputably excessive. Indeed, a four-hour deposition at the

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rate of $700 per hour is clearly excessive. This court is of the view that the appropriate measure of an

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expert witness’s compensation for giving deposition testimony is a reasonable hourly rate for the time

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actually spent in the deposition. The court has the discretion to determine what constitutes a reasonable

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fee for an expert witness at deposition. Rule 26(b)(4)(E). Cf. Edin v. Paul Revere Life Insurance Co.,

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188 F.R.D. 543, 545-46 (D.Ariz. 1999). On the record before us, the court finds that the reasonable rate

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for Mr. Barbe’s deposition is $300 per hour.

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IT IS THEREFORE ORDERED that defendant American Airlines’ Motion for Order Fixing

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Expert Witness Fee (#18) is granted. Mr. Barbe will be compensated at the rate of $300 per hour for

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the time actually spent in deposition and his travel time to and from the site of the deposition.

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DATED this 29th day of August, 2011.

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LAWRENCE R. LEAVITT
UNITED STATES MAGISTRATE JUDGE

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