Morales-Melecio et al v. United States of America (Department of Health and Human Services)

Filing 187

ORDER. GRANTED in part and DENIED in part 174 MOTION requesting Order. Signed by Judge Salvador E. Casellas on 8/5/2015.(JRD)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
LUZ Z. MORALES-MELECIO ET AL.,

Plaintiffs,
v.

Civil No. 13-1311 (SEC)

MARIA I. MARTINEZ-ORTIZ ET AL.,
Defendants.

MEMORANDUM AND ORDER
Before the Court are the third-party defendant’s motion requesting an order to
reduce the deposition fees of Plaintiff’s expert witness, Docket # 174, and the
plaintiffs’ opposition thereto. Docket # 175. After reviewing the filings and the
applicable law, the motion is GRANTED in part and DENIED in part.
Plaintiffs brought this medical malpractice action seeking compensatory
damages against the United States under the Federal Tort Claims Act, 28 U.S.C. §§
1346 (b), 2671-2680. They claim that the negligent acts and omissions taken by an
employee or agent of Salud Integral en la Montaña, Inc. – an entity covered by the
Federally Supported Centers Assistance Act, and deemed as an employee of the United
States Department of Health and Human Services – caused the death of Emilio MatosMartínez (Matos-Martínez), a father, son and brother to Plaintiffs. The United States
filed a third-party complaint against Hospital Universitario Dr. Ramón Ruiz Arnau
(HURRA) and other medical doctors that allegedly intervened or provided treatment to
Matos-Martínez at HURRA, including third-party defendant, Dr. Minely MartínezVelázquez’s (Martínez).
Despite the multiplicity of parties to this case, it seems Martínez is the only one
interested in deposing Plaintiff’s expert, Dr. Manuel Pérez-Pabón (Dr. Pérez). As such,

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she would be the only party paying Dr. Pérez’s deposition fees. Given the particular
circumstances, she estimates the deposition will not last more than three hours. See
Docket #174, ¶¶ 2 & 4.
Dr. Pérez charges a flat fee of $2,000.00 per deposition, four hours minimum.
See Docket # 174-1. His “Expert Witness Fee Schedule” states that “if defendant(s)
obtain a court order limiting their deposition payment responsibility to an hourly rate,
and amounting to less than the $2,000.00 flat fee, the balance is billed to the retaining
law firm.” Id. Before Martínez requested this Court’s intervention, the parties
conferred and Plaintiffs ultimately offered to absorb $500.00 of their expert fees. In
that scenario, Martínez would have to pay the remaining $1,500.00. Assuming that the
deposition actually lasts three hours, Martínez would be paying an effective rate of
$500.00 per hour. A rate she deems unreasonable.
Rule 26(b)(4)(E)’s requirement that the expert fees be “reasonable” is, along
with the “manifest injustice” inquiry, one way to thwart potential discovery abuse.
Rogers v. Penland, 232 F.R.D. 581, 582 n. 1 (E.D. Tex. 2005); see also United States v.
City of Twin Falls, Idaho, 806 F.2d 862, 879 (9th Cir.1986), overruled on other
grounds by Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437 (1987) (“The
purpose of the rule is to avoid the unfairness of requiring one party to provide
expensive discovery for another party’s benefit without reimbursement.”) (citing 4
James W. Moore et al., Moore’s Federal Practice ¶ 26.66[5] (2d ed. 1984)).
In determining the reasonableness of an expert’s fees, courts usually consider
the following factors:
(1) the witness’s area of expertise; (2) the education and training that is
required to provide the expert insight which is sought; (3) the prevailing
rates of other comparably respected available experts; (4) the nature,
quality and complexity of the discovery responses provided; (5) the fee
actually being charged to the party who retained the expert; (6) fees
traditionally charged by the expert on related matters; and (7) any other
factor likely to be of assistance to the court in balancing the interests
implicated by Rule 26.

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Cabana v. Forcier, 200 F.R.D. 9, 15-16 (D. Mass. 2001); see also Jochims v. Isuzu
Motors, Ltd., 141 F.R.D. 493, 495-96 (S.D. Iowa 1992); and Bandy v. Kimsey, No. 0982, 2010 WL 4630828, at 1 (N.D. Ind. Nov. 4, 2010) (citations and internal quotation
marks omitted). The ultimate goal is “to calibrate the balance so that a plaintiff will not
be unduly hampered in his/her efforts to attract competent experts, while at the same
time, an inquiring defendant will not be unfairly burdened by excessive ransoms which
produce windfalls for the plaintiff's experts.” Cabana, 200 F.R.D. at 16.
Dr. Pérez is a medical doctor specialized in internal medicine. According to his
Curriculum Vitae, he is an associate professor of internal medicine at San Juan
Bautista School of Medicine in Caguas, Puerto Rico, where he has held various
positions since October 2006. See Docket # 174-1.1
Martínez affirms – and Plaintiffs do not contest – that at least another court has
ruled to reduce Dr. Pérez’s deposition fees. Specifically, she points to Ruth SantiagoLaboy v. Hospital San Cristobal, Civil No. J DP2013-0011, where the Commonwealth
Court issued an order reducing Dr. Pérez’s deposition fees to $250.00 per hour, three
hours minimum. She also directs the Court’s attention to the hourly rate of the United
States’ expert witness, Dr. Anibelle Altieri, which is also $250.00, for a minimum of
three hours. Id. at ¶¶ 13-14. Martínez deems reasonable the $250.00 hourly rate and
requests this Court to reduce the deposition fees of Dr. Pérez to the same amount.
Moreover, she argues that Dr. Pérez’s preparation for the deposition should be
minimal.2 Mainly, because the testimony she seeks is limited to the expert’s opinion
Martínez seems to challenge Dr. Pérez’s membership as an associate professor but provides no
serious evidence in support thereof. See Docket # 174, ¶¶ 11-12. Specifically, she proffered a printout
page of an admittedly outdated website from the San Juan Bautista School of Medicine in Caguas
which contains an index of faculty members and points out that Dr. Pérez does not appear therein. At
this juncture the Court will not question the content of his Curriculum Vitae and certainly will not
consider the outdated website printout proffered by Martínez for purpose of this ruling.
2
Federal courts are split on the issue regarding the party responsible to pay for the expert’s
preparations time before a deposition. See Caballero v. Hosp. Espanol Auxilio Mutuo de Puerto Rico,
Inc., No. 07-1665(JA), 2010 WL 503059, at *3 (D.P.R. Feb. 8, 2010) (“courts have generally found
1

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regarding her intervention with Matos-Martínez, which is apparently briefly addressed
in two paragraphs of Dr. Pérez’s eight page report. Id. at ¶¶ 7-8. The foregoing is
consonant with Martínez’s estimate that the deposition should last less than three
hours.
A $2,000.00 flat fee or an hourly rate of $500.00 to take the deposition of a
specialized medical expert is not facially unreasonable. Accordingly, at the outset,
Plaintiffs’ proposed $1,500.00 flat fee does not seem necessarily unreasonable.
Unfortunately, Plaintiffs’ two page response failed to address Martínez’s somewhat
developed claim that their proposed $1,500.00 flat fee is still unreasonable under the
particular circumstances of this case. While Plaintiffs listed some of the positions Dr.
Pérez has held at the San Juan Bautista School of Medicine, the response does not
relate his qualifications, experience or training to their underlying claims. Moreover,
Plaintiffs provided the Court with no case law sanctioning other comparable respected
available experts who charge similar fees. Ultimately, Plaintiffs did not justify Dr.
Pérez rates.
Under these particular circumstances, the Court deems unreasonable Plaintiff’s
suggested $1,500.00 flat fee to take Dr. Pérez’s deposition. Plaintiffs have simply
failed to support a different conclusion. Since Martínez had no saying or involvement
in the selection of Plaintiffs’ expert witness, she should not be unfairly burdened by
Plaintiffs’ choice of such an expensive expert. See Bowen v. Monahan, 163 F.R.D.
571, 574 (D. Neb. 1995) (“While plaintiff may contract with any expert of Plaintiff’s
choice and, by agreement, that expert may charge unusually high rates for services, the
discovery process will not automatically tax such unreasonable fees upon the
defendant.”).
that the party taking the deposition is required by Rule 26(b)(4)(C)(i) to pay for preparation time”)
(original citations omitted); but see e.g. Rhee v. Witco Chem. Corp., 126 F.R.D. 45, 47 (N.D. Ill.
1989) (stating generally that “exclusion of ‘preparation’ time is supported by the lack of a provision
for compensation for time spent by experts in responding to interrogatories” but recognizing
exceptions may be warranted in complex cases).

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Considering the foregoing, the court reduces the amount Martínez will have to
pay to take Dr. Pérez’s deposition to a minimum fee of $1,000.00 for the first four
hours. Each additional hour will be charged at $350.00 with a $2,000.00 cap.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 5th day of August, 2015.
S/ Salvador E. Casellas
SALVADOR E. CASELLAS
U.S. Senior District Judge