McCormick et al v. Payne et al
MEMORANDUM OPINION AND ORDER - It is therefore ORDERED that Defendants' Application for Expert Fees and Expenses (Dkt. 103 ) is hereby GRANTED in part and DENIED in part. It is further ORDERED that Defendants are entitled to recover $612. 50 for Dr. Helen Reynolds's deposition time. It is further ORDERED that Defendants are entitled to recover $408.94 for Jacqueline Valencia's travel expenses. Defendants' motion is denied in all other respects, subject to reconside ration upon supplementation as directed by the Court. Defendants shall provide more detailed evidence for their experts within ten days of this order. In the absence of any such submission, the motion will be denied. Signed by Judge Amos L. Mazzant, III on 2/1/2017. (baf, )
United States District Court
EASTERN DISTRICT OF TEXAS
RICHARD C. PAYNE
BRETT C. BRAYTON, WARREN
Civil Action No. 4:15-CV-00809
MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendants’ Application for Expert Fees and Expenses
(Dkt. #103). After reviewing the relevant pleadings and motion, the Court finds that the
application should be granted in part and denied in part.
This case arises from a collision where the tractor-trailer driven by Brett Brayton, a truck
driver for Warren Transport, Inc. (collectively “Defendants”), collided into Richard Payne’s
(“Payne”) pickup. The impact caused Payne to careen into the vehicle in front of him.
Defendants have retained at least three experts to opine on economic loss suffered by
Payne. On September 15, 2016, Payne took the deposition of Dr. Benzel MacMaster
(“MacMaster”). On September 22, 2016, Payne took the deposition of Jacqueline Valencia
(“Valencia”). On September 23, 2016, Payne took the deposition of Dr. Helen Reynolds
On November 2 and 11, 2016, Defendants sent invoices and requests for payment of
expert fees to Payne. On November 11, 2016, Payne responded that he would pay for Reynolds
and MacMaster within a reasonable time, but that Valencia’s fee was unreasonable (Dkt. #112,
On December 9, 2016, Defendants filed this application for expert fees and expenses
(Dkt. #103). On December 22, 2016, Payne filed a response (Dkt. #112).
Federal Rule of Civil Procedure 26(b)(4)(E) provides, “unless manifest injustice would
result, the court must require that the party seeking discovery pay the expert a reasonable fee for
time spend in responding to discovery under Rule 26(b)(4)(A) or (D).” Knight v. Kirby Inland
Marine Inc., 482 F.3d 347, 356 (5th Cir. 2007). The purpose of this rule is both “to compensate
experts for their time in participating in litigation and to prevent one party from unfairly
obtaining the benefit of the opposing party’s expert work free from cost.” Hurst v. United States,
123 F.R.D. 319, 321 (D.S.D. 1988). However, a party should not be required to pay for time that
the expert uses to benefit the retaining party, as the deposing party is not gaining any advantage
from that type of preparation. Script Sec. Sols., LLC v. Amazon.com, Inc., Case No. 2:15-CV1030-WCB, 2016 WL 6649721, at *6 (E.D. Tex. Nov. 10, 2016). “A party moving for fees or
expenses should substantiate those requests, segregating properly compensable time from noncompensable time.” Rogers v. Penland, 232 F.R.D. 581, 582 (E.D. Tex. 2005).
Courts considering the reasonableness of the expert fees examine a number of factors,
including: (1) the expert’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 being charged to the retaining party; (6) fees traditionally charged by the expert on
related matters; and (7) any other factors likely to assist the court in balancing the interests
implicated by Rule 26. See Williams v. M-I, LLC, No. Civ.A.05-0404, 2006 WL 2604672, at *1
(W.D. La. Sept. 8, 2006); U.S. Energy Corp. v. NUKEM, Inc., 163 F.R.D. 344, 346 (D. Colo.
Dr. Benzel MacMaster
MacMaster is a retained medical expert with a practice in Dallas, Texas. MacMaster’s
invoice contains only two lines of charges: $2,500 for deposition, and $500 for “deposition
prep.” Defendants do not explain how Dr. MacMaster’s fees are reasonable or necessary besides
conclusory statements rehashing the legal standard (See Dkt. #103 at p. 4). Plaintiff objects to
MacMaster’s invoice because it does not delineate any amount of time spent consulting with the
retaining attorneys. Defendants bore this burden and did not provide any evidence by way of
affidavit or otherwise of time spent, if any, in consultation with the retaining attorneys. As such,
there is insufficient detail for the Court to award costs.
Dr. Helen Reynolds
Reynolds is a retained economist located in Dallas, Texas. Reynolds’s invoice charges a
total amount of $3,364.52, of which $612.50 is for her deposition. Again, Defendants do not
provide any explanation for Reynolds’s fee besides conclusory statements rehashing the legal
standard. Plaintiff does not object to the fees regarding Reynolds’s deposition. Therefore,
Defendants’ application should be granted insofar as Reynolds charged for her deposition.
However, Defendants’ application should be denied as to the rest of Reynolds’s costs. There is
no evidence of time spent with the retaining attorneys, if any. Therefore, Defendants have failed
to meet their burden in proving that they are entitled to the fees submitted.
Valencia is a vocational rehabilitationist located in San Antonio, Texas. Valencia’s
invoice states costs totaling $8,883.94, of which $408.94 is for travel. Plaintiff does not object to
the travel expenses. Therefore, Defendants’ application should be granted with regard to
Valencia’s travel expenses.
Plaintiff objects to the rest of Valencia’s costs because four hours were spent consulting
with attorneys and the remaining 22.75 hours is unreasonable. The Court agrees. Examining the
factors for reasonableness, the Court finds that Valencia’s $6,825 fees in preparing for deposition
are unreasonable. Valencia is not a medical doctor or Ph.D. The subject matter of her testimony
is not particularly complex in the realm of experts. Finally, there is no evidence on the level of
education necessary for Valencia’s testimony, rates of other experts, quality of the discovery
responses, or the typical fee charged by this expert. Based on the lack of evidence and the
comparable costs for experts with higher degrees of education in this case, the Court finds that
Valencia’s fees are unreasonable as charged.
Ordinarily, the failure of proof by Defendants would be a sufficient ground for the Court
to deny Defendants’ motion to compel the payment of fees. In this case, however, Payne
originally seemed to agree to the fees for MacMaster and Reynolds, and offered partial payment
for Valencia. Thus, the Court finds that at this time, outright denial would be inappropriate.
However, the Court likewise does not have sufficient evidence to compel the payment of fees.
Therefore, Defendants should provide additional details as to the nature of each of their experts’
preparation activities. That supplemental submission should disclose the general nature of the
experts’ preparation work, including, in particular, whether any of the charged preparation time
was spent consulting with Defendants’ attorneys or other representatives. This supplemental
documentation should be in the form of affidavits from the experts along with any additional
documentary materials that may be pertinent. If Defendants submit such documentation within
ten days of the date of this order, the Court will consider whether to enter an order compelling
Payne to pay all or some of the expenses claimed. In the absence of such a submission, the
motion will be denied.
It is therefore ORDERED that Defendants’ Application for Expert Fees and Expenses
(Dkt. #103) is hereby GRANTED in part and DENIED in part.
It is further ORDERED that Defendants are entitled to recover $612.50 for Dr. Helen
Reynolds’s deposition time.
It is further ORDERED that Defendants are entitled to recover $408.94 for Jacqueline
Valencia’s travel expenses.
Defendants’ motion is denied in all other respects, subject to reconsideration upon
supplementation as directed by the Court. Defendants shall provide more detailed evidence for
their experts within ten days of this order. In the absence of any such submission, the motion will
SIGNED this 1st day of February, 2017.
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE
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