Whalen v. CSX Transportation, Inc.

Filing 295

OPINION AND ORDER re: 270 LETTER MOTION for Discovery /Outstanding Discovery Motion Deposition of Plaintiff's Expert, Dr. Houten addressed to Magistrate Judge Henry B. Pitman from Lawrence R. Bailey, Jr., Esq. dated October 4, 201 6. filed by CSX Transportation, Inc. One discovery item that remains to be completed is defendant CSX Transportation, Inc.'s ("CSX's") deposition of plaintiff's sole expert, Dr. John K. Houten, a neurosurgeon. (As further set forth in this Order.) For the foregoing reasons, CSX's application to fix Dr. Houten's fee and to set the terms on which Dr. Houten is to be paid is granted to the extent that Dr. Houten's hourly rate for deposition and deposition preparation time is set at $500 per hour and CSX is directed to pay Dr. Houten's invoice within ten business days of receiving it. Without expressing any opinion as to the admissibility of such a recording and without prejudice to any arg uments defendants may raise concerning admissibility, plaintiff's cross-motion to video-record Dr. Houten's deposition is granted. The Clerk of the Court is directed to mark Docket Items 156 and 270 closed. (Signed by Magistrate Judge Henry B. Pitman on 1/26/2017) Copies Sent By Chambers. (cf)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

-----------------------------------X
DANIEL WHALEN,
Plaintiff,

13 Civ. 3784

(LGS) (HBP)

OPINION
AND ORDER

-againstCSX TRANSPORTATION, INC., et al.,
Defendants.

-----------------------------------X
PITMAN, United States Magistrate Judge:

This is an action brought under the Federal Employers
Liability Act in which plaintiff alleges that he sustained
injuries when a chair in his workplace unexpectedly reclined and
then whipped forward.

One discovery item that remains to be

completed is defendant CSX Transportation, Inc.'s

("CSX's")

deposition of plaintiff's sole expert, Dr. John K. Houten, a
neurosurgeon.

At the time this dispute arose, Dr. Houten lived

and worked in Florida, and the parties disagreed as to who should
bear the travel costs associated with Dr. Houten's deposition.
According to the web site of Brooklyn's Maimonides Medical Center
("Maimonides")
Maimonides,

1

1

in New York, and a press release issued by

Dr. Houten has been the Director Spinal Neurosurgery

https://www.maimonidesmed.org/news-events/news-stories?news=65
(continued ... )

and Neurotrama at Maimonides since September 2016.

Accordingly,

the dispute concerning the costs associated with conducting a
deposition in Florida is now moot.

The parties still have

disagreements regarding Dr. Houten's hourly rate, whether CSX
should be required to prepay all or part of Dr. Houten's fee for
his deposition and plaintiff's application to videotape Dr.
Houten's deposition.

A.

Dr. Houten's Hourly
Rate for Deposition Time

Although plaintiff seeks an hourly rate of $700 for Dr.
Houten's deposition, he has failed to justify this rate.
Rule 26(b) (4) (E) provides that "[u]nless manifest
injustice would result .

. the court shall require that the

party seeking discovery pay the expert a reasonable fee for time
spent in responding to discovery .
26(b) (4) (E).

"

Fed.R.Civ.P.

When the dispute concerning Dr. Houten's hourly

rate first arose, I issued an Order that set forth the factors
relevant to determining an expert witness' reasonable hourly rate
(See Order, dated Oct. 2, 2015 (D.I. 166)
3-4) .

1

Because the party retaining the expert bears the burden of

continued)
(last visited Jan. 25, 2017).
( •••

("October 2 Order") at

demonstrating the reasonableness of the fee sought by the expert,
my October 2 Order directed plaintiff to
submit an affidavit addressing the factors identified
[in the cases cited above] and justifying the $700 hour
rate sought by Dr. Houten by October 15, 2015.
Pending
the receipt of that submission and my ultimate resolution of the dispute, Dr. Houten's hourly rate is tentatively set at $500/hour.
(October 2 Order at 4).

Inexplicably, plaintiff failed to submit

the affidavit he was directed to submit.

Rather, plaintiff

submitted an unsworn letter in which he argued that Dr. Houten's
$700 hourly rate is reasonable because neurosurgeons generally
are highly educated and highly paid and because CSX's experts
have requested comparable or higher rates

(D.I. 169 at 4-6).

Plaintiff's general statements are of little help.

All physi-

cians are highly educated and, in comparison to the average
income in the United States, almost all physicians are highly
paid.

2

Further, the fact that plaintiff has not objected to

CSX's experts' hourly rates does not render them presumptively

2

According to USA Today, the average overall household income in
the United States in 2014 was $65,751, with only 4.2% of the
population making more than $200,000.00.
http://www.usatoday.com/story/money/personalfinance/2016/11/24/average-american-house
hold-income/93002252/ (last visited Jan. 25, 2017).

reasonable or adequate comparisons.

3

In short, plaintiff has

offered nothing to justify the rate of $700 per hour.
In addition, it appears that a rate of $500 per hour is
reasonable.

Neurosurgery is notorious for requiring long hours,

with surgeries beginning at 6:00 or 7:00 in the morning and
consultations and other duties continuing into the afternoon or
early evening.

If I assume that a neurosurgeon averages 60 hours

per week for 43 weeks a year (I assume a total of two months
vacation and days off) and earns $500,000 per year,

4

the physi

3

Plaintiff also argues that one of my previous decisions supports
the hourly rate requested here (D.I. 169 at 5 n.3, citing Giladi
v. Strauch, 94 Civ. 3976 (RMB) (HBP), 2001 WL 388052 at *8
(S.D.N.Y. Apr. 16, 2001), abrogated on other grounds, Whalen v.
CSX Transp., Inc., 13 Civ. 3784 (LGS) (HBP), 2016 WL 5660381
(S.D.N.Y. Sept. 29, 2016) (Pitman, M.J.).
Plaintiff points out
that in that case, I held that the requested daily rate of $2500
was "within the range of reasonableness for a physician's
testimony in the New York metropolitan area" partially because
other physicians appearing before me had received twice that fee.
Giladi v. Strauch, supra, 2001 WL 388052 at *8.
Plaintiff
extrapolates from this holding that Dr. Houten's hourly rate of
$700 (translating to a $4900 daily rate for 7 hours) is
presumptively reasonable under my previous decision.
Plaintiff
misunderstands the decision and his burden of proof.
In Giladi,
I found that the rate requested in that case for that expert was
reasonable, partially based on the rates requested by similar
experts.
The decision did not, however, establish a
presumptively reasonable hourly rate for all testifying medical
experts.
Here, plaintiff has failed to support the
reasonableness of the specific rate requested here or provide
examples of rates awarded to other comparable experts.
4

Based on the anonymous submissions of 14 claimed neurosurgeons,
the web site Glassdoor reports that the average salary of a
neurosurgeon in the New York metropolitan area is $489,839.
https://www.glassdoor.com/Salaries/new-york-city-neurosurgeon(continued ... )

cian's hourly rate would be approximately $193
hours) .

($500,000

7

2580

In the alternative, if I assume 40 hours per week for 43

weeks and an annual salary of $500,000, the hourly rate is $291.
If I assume 40 hours per week for 43 weeks and an annual salary
of $700,000, the hourly rate is $407.

These examples illustrate

that an hourly rate of $500 is in excess of what is probably a
neurosurgeon's regular hourly rate.
CSX's objection to plaintiff's demand that CSX partially pre-pay Dr. Houten for his deposition time is also sustained.

Plaintiff has not addressed this issue in his papers,

and there

lS

therefore no justification in the record for this

request.

To eliminate any uncertainty, I shall order CSX to pay

Dr. Houten's invoice within ten business days of receiving it.

B.

Video Recording of
Dr. Houten's Deposition

Plaintiff has requested permission to video-record
CSX's deposition of Dr. Houten.

CSX does not oppose this re-

quest, but reserves the right to object to plaintiff's using the
deposition as an opportunity to conduct a "trial deposition" that
would be used in place of Dr. Houten's live trial testimony (D.I.
170at2-3).

4

Plaintiff indicates that this is a "non-issue"

( • • • continued)
salary-SRCH_IL.0,13 IM615 K014,26.htm (last visited Jan. 25,
2017) .

because he "has made no application to preserve and perpetuate
Dr. Houten's testimony"

(D. I. 171 at

~

1).

Therefore, without

expressing any opinion on the admissibility of Dr. Houten's
deposition testimony, plaintiff's application to video record
CSX's deposition of Dr. Houten is granted.

Conclusion

For the foregoing reasons, CSX's application to fix Dr.
Houten's fee and to set the terms on which Dr. Houten is to be
paid is granted to the extent that Dr. Houten's hourly rate for
deposition and deposition preparation time is set at $500 per
hour and CSX is directed to pay Dr. Houten's invoice within ten
business days of receiving it.

Without expressing any opinion as

to the admissibility of such a recording and without prejudice to

any arguments defendants may raise concerning admissibility,
plaintiff's cross-motion to video-record Dr. Houten's deposition
is granted.

The Clerk of the Court is directed to mark Docket

Items 156 and 270 closed.
Dated:

New York, New York
January 26, 2017
SO ORDERED

)L

__/~

HENRY PIT&"
United States Magistrate Judge
Copies transmitted to:
All Counsel of Record