Brunarski et al v. Miami University

Filing 40

ORDER granting 36 Defendant's Motion to Set Reasonable Expert Witness Fee to the extent that Dr. Stark is ORDERED to sit for his deposition at a reasonable rate, which this Court determines to be $750 per hour. Signed by Magistrate Judge Stephanie K. Bowman on 2/23/2017. (km)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
KELLY BRUNARSKI,

Civil Action No. 1:16-cv-311

Plaintiff,

Dlott, J.
Bowman, M.J

vs.
MIAMI UNIVERSITY
Defendants.
ORDER
This civil action is now before the court on Defendant’s motion to set a
reasonable expert witness fee for the discovery deposition of Plaintiff’s expert witness,
Phillip Start (Doc. 36) and the parties’ responsive memoranda. (Docs. 37, 38, 39).
I. Facts and Background
Plaintiffs’ complaint alleges that Miami University violated the Equal Pay Act.
Plaintiffs, who are professors in the Farmer College of Business at Miami University,
claim they are compensated less than their male colleagues because of their gender.
Plaintiffs have identified Philip Stark, Ph.D, as their expert witness with respect to this
case. Dr. Stark is a professor at the University of California, Berkeley, and has provided
an opinion regarding the student teaching evaluations utilized by Miami University in
evaluating teacher performance. Dr. Stark claims that the student teacher evaluations
are biased against women and minorities.
Defendant Miami has requested to take Dr. Stark's deposition and counsel for
Miami will be traveling to California to do so. The deposition has been set for March 14,
2017, in Berkeley, California. Dr. Stark is requesting $1,500.00 per hour for his

deposition time. Defense counsel offered to pay a reasonable fee for Dr. Stark's
deposition time -- $500 per hour. That offer was refused by Dr. Stark. Defendant now
moves for an Order from this Court to set a reasonable expert fee. For the reasons set
forth below, the undersigned agrees that this fee is not reasonable and must be reduced
by the Court.
II. Analysis
Rule 26(b) (4)(E)(i) states that “[u]nless manifest injustice would result,” a party
must pay an expert a “reasonable fee” for a deposition. Anderson v. Jas Carriers, Inc.,
No. 1:12-CV-280, 2013 WL 991902, at *1–2 (S.D. Ohio Mar. 13, 2013). The issue of
what constitutes a “reasonable fee” has been extensively litigated throughout the
country, perhaps most frequently in the context of treating physicians. In the Sixth
Circuit and elsewhere, federal case law reflects widespread judicial criticism of blatant
attempts to gouge opposing parties with steep fees, and an activist approach in
reducing fees deemed to be exorbitant. Most recently in Burgess v. Fischer, 283 F.R.D.
372 (S.D.Ohio 2012), another court in this district issued a published decision
determining that $360.00 per hour was a reasonable rate for the deposition of an expert
whose credentials included both an “M.D.” and a “Ph.D.” See also Alvarado v. Oakland
County, 2011 WL 282683 (E.D. Mich. Jan 26, 2011); Weimer v. Honda of Amercia,
Mfg., Inc., 2008 WL 5142418 (S.D.Ohio Dec.5, 2008); Bell v. City of Hudson, 2006 WL
1473209 (N.D.Ohio May 22, 2006); Norman v. City of Lorain, 2006 WL 5249724
(N.D.Ohio Nov.16, 2006); Delbrugge v. State Farm Mut. Auto. Ins. Co., 2001 WL
1842317 (S.D.Ohio May 7, 2001).

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Under this body of case law, a “reasonable” expert fee is not automatically equal
to the “prevailing market rate.” See e.g., Magee v. The Paul Revere Life Insurance Co.,
172 F.R.D. 627, 646 (E.D.N.Y.1997) (holding that the rule “requires that an expert
receive a ‘reasonable’ fee, and not necessarily one justified under current market
conditions.”). Instead, courts called to determine a “reasonable” expert fee will consider
the prevailing rate for a comparable, available expert as one of a multitude of factors,
including: (1) the witness's area of expertise; (2) the education and training required for
the opinion sought; (3) the nature, quality and complexity of the discovery responses
provided; (4) the fee being charged to those who retained the expert; and (5) fees
traditionally charged on related matters. The list of factors that may be relevant can vary
from case to case. See Jochims v. Isuzu Motors, Ltd., 141 F.R.D. 493, 495 (S.D.Iowa
1992).
Here, Plaintiffs contend that Dr. Stark is “arguably the single most expert person
on this [the utilization of student/teacher evaluations] in America.” (Doc. 37). Plaintiff
notes that a review of Dr. Stark’s resume reveals that he is one of the main authors in
the main article on student teacher evaluations and sexual harassment. See Teaching
Evaluations (mostly) Do Not Measure Teaching Effectiveness. Evaluating Evaluations,
Part 1: Do Student Evaluations Measure Teaching Effectiveness? What Evaluations
Measure, Part 2: What Exactly Do Student Evaluations Measure? and Student
Evaluations Of Teaching Are Not Only Unreliable, They Are Significantly Biased Against
Female Instructors. Thus, Plaintiffs’ respectfully contend that, on the West Coast, a
reasonable expert witness fee for Dr. Stark is $1500.00 per hour.

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Notably, “the burden of proving the reasonableness of an expert's fees lies with
the party seeking reimbursement,” in this case the Plaintiffs. Fiber Optic Designs, Inc. v.
New England Pottery,LLC, 262 F.R.D. 586, 589 (D. Colo. 2009); Se-Kure Controls, Inc.
v. Vanguard Prods. Group, Inc., 873 F. Supp. 2d 939, 957 (N.D. Ill. 2012); Clossin v.
Norfolk S. Ry. Co., Case No. 3:13-01 (W.D. Pa. Jul. 8, 2014). Defendant contends that
Plaintiff has failed to meet this burden, by failing to present anything but unsupported
conclusory statements in support of their claim that a fee of $1,500 per hour for
deposition time is reasonable. The undersigned agrees.
In this regard, Defendant provided the Court with a national expert witness fee
survey which demonstrates that the average hourly fee for non-medical experts is $319
for deposition time. (Doc. 36, Ex. B). Moreover, Defendant is also incurring significant
travel expenses to travel to California for Dr. Stark’s deposition. The undersigned also
recognizes that Mr. Stark has received the requested $1500.00 per hour fee in other
cases, including one in this county for trial testimony. However, bearing in mind the
principle that an “expert's fee should not be so high as to impair a party's access to
necessary discovery or result in a windfall to the expert,” the court determines that the
reasonable rate must lie between the amount Dr. Stark seeks to recoup and the amount
Defendant has offered to pay. See Smith v. City of Chicago, No. 12 CV 4546, 2013 WL
5609332, at *3 (N.D. Ill. Oct. 11, 2013).

Applying this formula, the undersigned

concludes that Dr. Stark should be compelled to sit for his deposition at a rate of $750
per hour. See Profile Prods., 155 F.Supp.2d at 886–87 (court exercised discretion to
set reasonable expert rate).

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IV. Conclusion
For the foregoing reasons, Defendant’s motion to set a reasonable expert
witness fee (Doc. 36) is granted to the extent that Dr. Stark is ORDERED to sit for his
deposition at a reasonable rate, which this court determines to be $750 per hour.1
IT IS SO ORDERED.

s/Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

1

Should Dr. Stark still require his $1500 hourly fee despite this Court’s Order, Plaintiffs will have to pay
the difference.

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