Gustin v. Plano Molding Company et al

Filing 145

ORDER re #134 Motion to set Reasonable Fees for the Deposition of James Loong, Ph.D. Signed by Magistrate Judge Carl W. Hoffman on 3/9/16. (Copies have been distributed pursuant to the NEF - TR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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COLE GUSTIN, by and through CARMEN
GUSTIN, Guardian Ad Litem,

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Presently before the Court is Defendant Doskocil Manufacturing Company’s Motion to Set

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Plaintiff,
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vs.
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PLANO MOLDING COMPANY, et al.,
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Defendants.

Case No. 2:14-cv-00700-RCJ-CWH
ORDER

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Reasonable Fees for the Deposition of James Loong, Ph.D. (ECF No. 134), filed on January 29,

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2016. The motion is unopposed. (Notice of Non-Resp. (ECF No. 138).)

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The issue on this motion is Dr. James Loong’s fees for taking his deposition. Dr. Loong is

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Plaintiff’s neuropsychological expert. (Mot. to Set Fees, Ex. A.) Dr. Loong initially provided to

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Defendant Doskocil a retainer agreement stating that he charged a rate of $800.00 per hour for

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evaluation and recommendation and $1,000.00 per hour for depositions. (Id. at Ex. B.) The

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agreement states that Dr. Loong requires pre-payment of fees. (Id.) Dr. Loong subsequently

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provided to Defendant Doskocil an updated agreement with an increased deposition fee of $1,500.00

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per hour as well as an invoice for all seven hours of his deposition time, totaling $10,5000.00. (Id. at

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Exs. D, E.) Dr. Loong charged Plaintiff $800.00 per hour for work on Plaintiff’s case. (Id. at Ex. F.)

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Defendant Doskocil now requests that the Court limit Dr. Loong’s hourly fee, arguing that it

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is unreasonable for Dr. Loong to charge Defendant Doskocil $700.00 per hour more than what he

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charged Plaintiff. Defendant Doskocil requests that Dr. Loong’s hourly fee be set at $500, which is

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the rate of Defendant Doskocil’s neuropsychological expert, Lewis Etcoff, Ph.D. (Id. at Ex. G.)

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Alternatively, Defendant Doskocil requests that Dr. Loong’s hourly fee be set at $800.00, which is

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his normal hourly rate. As evidence of the prevailing rates for neuropsychological experts,

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Defendant Doskocil provides the fee schedule of neuropsychologist Ari Kalechstein, who charges

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$650.00 per hour for depositions. (Id. at Ex. H.) Defendant Doskocil also requests that it not be

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required to execute a contract or agreement with Dr. Loong regarding the deposition.

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Under Federal Rule of Civil Procedure 26(b)(4)(E)(I), the party seeking discovery must pay

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an expert “a reasonable fee” for time spent in a deposition. In determining what constitutes a

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reasonable fee, courts consider factors such as “(1) the witness’s area of expertise, (2) the education

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and training that is required to provide the expert insight that is sought, (3) the prevailing rates for

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

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responses provided, (5) the cost of living in the particular geographic area, (6) the fee being charged

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by the expert to the party who retained him, (7) fees traditionally charged by the expert on related

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matters, and (8) any other factor likely to be of assistance to the court in balancing the interests

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implicated by Rule 26.” Axelson v. Hartford Ins. Co. of the Midwest, No. 2:11-cv-1827-RCJ-GWF,

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2013 WL 1261757, at *2 (D. Nev. Mar. 26, 2013).

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Here, Defendant Doskocil does not provide argument or evidence on any of these factors

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except the prevailing rates and the fee being charged by the expert to the party who retained him.

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Regardless, given that the other experts’ rates are well below $1,500.00 per hour for depositions and

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that Dr. Loong charged Plaintiff $800.00 for the work performed in this case, the Court finds that the

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hourly rate of $800.00 for Dr. Loong’s deposition is reasonable. The Court therefore will grant

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Defendant Doskocil’s motion to the extent that it requests that Dr. Loong’s deposition fee be set at

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$800.00 per hour.

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The Court further orders Defendant Doskocil to pay Dr. Loong $1,600.00 in advance of his

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scheduled deposition. The $1,600.00 covers the first two hours of Dr. Loong’s deposition. If the

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deposition exceeds two hours, then Defendant Doskocil must pay Dr. Loong for the additional time

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based on an hourly rate of $800.00, in half-hour increments, i.e., if the deposition goes an additional

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half hour, Defendant Doskocil must pay an additional $400.00. Dr. Loong must make himself

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available for up to four hours of deposition time. Defendant Doskocil must promptly pay any

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additional compensation for the deposition to Dr. Loong. Finally, neither Defendant Doskocil nor its
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attorney are required to execute a contract with Dr. Loong regarding his deposition; rather, the

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Federal Rules of Civil Procedure and this Court’s orders govern the conditions under which the

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deposition is taken.

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IT IS SO ORDERED.

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DATED: March 9, 2016

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______________________________________
C.W. Hoffman, Jr.
United States Magistrate Judge

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