Sanford v. Stewart et al

Filing 64

Memorandum Opinion and Order For the reasons stated herein, the Court orders Plaintiff to pay Dr. Volk an expert witness fee of $200 per hour for the 2.25 hours spent in the deposition setting. Additionally, the Court denies Defendants&# 039; unopposed motion for an extension of time to file a dispositive motion. ECF No. 63 .4 The Court has already advised counsel that the parties should not expect any further enlargement of dates. Judge Benita Y. Pearson on 5/22/2013. Related document(s) 61 , 62 , 63 . (JLG)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
CLARENCE SANFORD,
Plaintiff,
v.
LISA STEWART, et al.,
Defendants.

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CASE NO. 5:11cv2360

JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION AND
ORDER [Regarding ECF Nos. 61; 62; 63]

On April 26, 2011, Magistrate Judge George J. Limbert issued an Order (ECF No. 61)
granting Defendants’ motion to quash and/or motion for protective order relating to Plaintiff’s
request to depose Defendants’ expert, Dr. Barbara Volk (ECF No. 59).1 Defendants filed an
Objection and/or Motion for Reconsideration, objecting to the amount of the fee the magistrate
judge determined Dr. Volk should be paid when deposed by Plaintiff. ECF No. 62. Defendants
stated that Dr. Volk requests $450.00 an hour for her time at the deposition; the magistrate judge
rejected that amount and ordered Plaintiff to pay Dr. Volk a flat fee of $200.00. ECF No. 61 at 5.
I.
When a party files a motion for reconsideration of a magistrate judge’s nondispositive
pretrial order, the district court may only reverse the magistrate judge’s decision if it is “clearly

1

Dr. Volk was employed at the juvenile facility where Plaintiff was incarcerated. ECF
No. 61 at 3. A discovery dispute arose, in part, because Plaintiff argued he did not have to wait
until after the expert report to depose Dr. Volk or pay her an expert’s fee because she was a fact
witness and he would only ask her questions based on her status as a fact witness. ECF No. 61 at
4. The magistrate judge ruled against Plaintiff, determining that Dr. Volk was nevertheless
Defendants’ expert, and ordered Plaintiff to depose Dr. Volk after her expert report had been
completed and to pay her a reasonable rate per Fed. R. Civ. P. 26(b)(4)(E). ECF No. 61 at 4, 6.

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erroneous or is contrary to law.” 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a). See also
Chesher v. Allen, 122 Fed. Appx. 184, at *2 (6th Cir. 2005); Freudeman v. Landing of Canton,
2010 WL 2836764, at *1 (N.D.Ohio July 19, 2010).
II.
In objecting to the magistrate judge’s determination that $200 is a reasonable rate for Dr.
Volk’s deposition, Defendants merely assert that the deposition lasted two and one-quarter hours,
amounting to an hourly fee of $66.00 per hour which they argue is unreasonable. ECF No. 62 at
4. The Court notes that Defendants divided incorrectly—a $200 flat fee results in an hourly fee
of slightly less than $89 per hour. Even this improved hourly rate omits that twenty minutes of
the 2.25 hours was spent on the telephone with the magistrate judge in an attempt to resolve a
dispute regarding the propriety of the questions being posed by Plaintiff’s counsel. While
compensable at some rate, it should not necessarily be charged at the rate of testimony.2
Notably, Defendants do not provide the Court with sufficient information explaining why
the $200 flat rate is unreasonable or the $450 per hour rate reasonable, such as: Dr. Volk’s
education; her training and experience; the prevailing rate for comparable experts; the nature and
complexity of the information sought; or her regular hourly rate for professional services. See

2

According to Defendants, during the deposition Plaintiff began to make inquiries
regarding Dr. Volk’s expertise. ECF No. 62 at 4. Defendants objected because Plaintiff had
previously stated he would only ask questions related to Dr. Volk’s status as a fact witness.
Defendants believed that, pursuant to the Order (ECF No. 61), this line of questioning was
improper because Plaintiff had allegedly previously asserted he would only be asking fact-based
questions. ECF No. 62 at 3. The parties called the Court during the deposition to ask for an
interpretation of the Order, and the magistrate judge ruled that Plaintiff can depose Dr. Volk as
an expert witness as to her opinion. 5/8/2013, Minutes of Proceedings.
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Burgess v. Fischer, 283 F.R.D. 372, 373 (S.D.Ohio 2012) (citing Bonar v. Romano, 2010 WL
4280691, at *1 (S.D.Ohio Oct. 25, 2010)).3 Instead, Defendants merely state that they are paying
Dr. Volk $150 per hour for review and preparation of her expert report, and $450 per hour for
trial testimony. ECF No. 62 at 6.
Despite the paucity of the record, the Court grants Defendants’ motion for reconsideration
because it finds the $200 flat rate to be unreasonable—it also, however, finds the $450 per hour
rate to be unreasonable, under the circumstances presented herein. Dr. Volk’s board certification
in both internal medicine and pediatrics is certainly to be credited. Beyond this, Defendants
make no effort to explain why the $450 rate is reasonable, despite reciting the generic factors that
a court considers in determining an expert’s fee. ECF No. 62 at 5. Defendants also fail to
provide Dr. Volk’s regular hourly rate for professional services and do not point to any
comparable expert with whom her talent can be reasonably compared. See Bonar, 2010 WL
4280691, at *1-2 (citing factors and reviewing curriculum vitae and expert fees of five
comparable physicians).
The Court finds that $200 per hour is a better representation of the services provided by
Dr. Volk during the deposition. The Court bases this determination on Dr. Volk’s board
certifications and the limited use to which that expertise was tasked. Only some of the
information sought during the deposition related to Dr. Volk’s expertise; the remaining

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Defendants argue that they have in the past paid $400 per hour in conducting
depositions and have charged $300 per hour without objection from the opposing party. ECF
No. 62 at 5. These matters cited by Defendants were uncontested and, in any event, are not
dispositive on the issue of a reasonable fee for Dr. Volk’s deposition in the instant case.
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information sought related to her personal knowledge as a fact witness— that is, an actor and
witness regarding the occurrences and events related to the subject matter of the suit. See Id. at
*1 (courts consider the complexity of the information sought); ECF Nos. 60 at 2; 61 at 4; 62 at 4.
As to the gap between the $450 per hour Defendants are paying Dr. Volk for trial testimony
versus the $150 per hour they are paying her for reviewing and preparing an expert report, the
Court recognizes that the more robust activity of answering questions designed to test an expert’s
opinion warrants greater compensation than the more passive acts of writing and reviewing a
report. For all these reasons, the Court orders Plaintiff to pay Dr. Volk an expert witness fee of
$200 per hour for the 2.25 hours spent in the deposition setting.
III.
Additionally, the Court denies Defendants’ unopposed motion for an extension of time to
file a dispositive motion. ECF No. 63.4 The Court has already advised counsel that the parties
should not expect any further enlargement of dates. See 3/11/2013, Order.

IT IS SO ORDERED.

May 22, 2013
Date

/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge

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For cause, Defendants assert that the Court ordered Plaintiff to depose Dr. Volk by May
15, 2013, 19 days after the discovery cutoff date and, thus, Defendants seek an additional 19 day
extension. ECF No. 63 at 2. The Court notes that 1) Plaintiff deposed Dr. Volk on May 8, 2013,
and 2) it was Defendants who insisted Dr. Volk’s deposition be delayed until after the discovery
cutoff, instead of April 24, 2013 as originally scheduled by Plaintiff. ECF No. 59 at 3, 5.
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