United States District Court, E.D. Pennsylvania
January 5, 2004.
EDWARD SWEENEY, et al
The opinion of the court was delivered by: M. FAITH ANGELL, Magistrate Judge
FACTUAL AND PROCEDURAL BACKGROUND
This matter was referred to me by the Honorable Louis H. Pollak for
resolution of all non-dispositive pre-trial matters by Order dated
October 8, 2002. Presently before me is Plaintiff's Motion for Relief
from Expert Fees and Defendants Lehigh County Prison, Edward Sweeney,
Cindy Egizio and Nancy Afflebach's Response to Plaintiff's motion.
Plaintiff Orlando Delgado has instituted this action against Defendants
in which he claims that he was denied adequate medical care for heroin
withdrawal symptoms and diabetes when he was in Lehigh County Prison.
MOTION FOR RELIEF FROM EXPERT FEES
Plaintiff wishes to depose Defendants*fn1 expert witness, Dr. Timothy
Michals, and he has filed a motion for relief from the payment of Dr.
Michals' expert fees. In the alternative, Plaintiff believe that Dr.
Michals' fee is unreasonable1, and he asks the court to reduce his rate
to a more reasonable fee. As a general rule, indigent litigants initially
bear their own litigation expenses. Tabron v.
Grace, 6 F.3d 147, 159 (3d Cir. 1993). The threshold question, here, then
becomes whether the cost of deposing Defendants' expert witness should be
shifted to Defendants.
The Federal Rules of Civil Procedure provide the mechanism for taking
discovery from an expert witness. Reed v. Binder, 165 F.R.D. 424, 425
(D.N.J. 1996). Rule 26(b)(4)(A) provides that "[a] party may depose any
person who has been identified as an expert whose opinions may be
presented at trial." "Unless 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 . . ."
Fed.R.Civ.P. 26(b)(4)(C). Unfortunately, there is no clear definition of
"manifest injustice". Reed, 165 F.R.D. at 425. By the terms of Rule
26(b)(4)(C), exceptions to the normal course of payment of expert's fees
for deposition testimony is permitted. Id. at 428.
Plaintiff herein relies on Reed as justification to shift the cost of
deposing Dr. Michals to Defendants. The court must "weigh the possible
hardships imposed on the respective parties . . . [and] balance the need
for doing justice on the merits between the parties . . . against the
need for maintaining orderly and efficient procedural arrangement." Id.
at 427-428, Gorlikowski v. Tolbert, 52 F.3d 1439, 1444 (7th Cir. 1995).
Reed held that manifest injustice would result if the impoverished
plaintiffs had to pay six defense experts for their testimony. Reed, 165
F.R.D. at 428. The court found that the "imposing economic obstacle
facing these plaintiffs seeking redress for the death of their wife and
mother (and chief financial support) requires that these costs be shifted
to the defendants." Id.
Reed, however, is distinguishable. There, the plaintiffs alleged that
they were forced to undertake the depositions because of the inadequacies
of the defense experts' reports. Id. at 429. After close examination the
court found that the plaintiffs were substantially correct. Id. The
found that all of the six defense expert reports, to some extent, failed
to meet the disclosure requirements of Rule 26(a)(2)(B). Id. at 430.
Because the defendants failed to meet the disclosure requirements of Rule
26(a)(2)(B), the court found that the appropriate sanction was to require
the defendants to bear the fees charged by their experts. Id. at 431.
In Tabron, plaintiff, a State prisoner, brought suit under
42 U.S.C. § 1983 against eight prison officials, claiming that they
had violated his constitutional rights by failing to protect him from an
assault by another prisoner. Tabron, 6 F.3d at 150. The court denied
indigent plaintiff's request to commit federal funds to pay for
deposition transcripts. Id. at 159. In the alternative, plaintiff argued
it was within the equitable powers of the district court to order the
defendants to pay for deposition transcripts for plaintiff as a condition
for taking the depositions. Id. The court agreed that a district court
might, under some circumstances, exercise its discretion to order an
opposing party to pay for copies of deposition transcripts for an indigent
litigant as a condition precedent to allowing that party to take
depositions. Id. "However, the magistrate judge declined to do so here
after finding that copies of the transcripts were not necessary for
Tabron to make his case, at least at the summary judgment stage." Id. The
magistrate judge had noted that plaintiff had not demonstrated in any of
his papers why he needed copies of the transcripts to defend against the
motion for summary judgment. Id. "Given that, as a general rule, indigent
litigants bear their own litigation expenses, at least initially, we
cannot say that the district court's decision not to order defendants to
provide [plaintiff] with copies . . . was an abuse of discretion." Id. at
After weighing the possible hardships imposed on the respective parties
and balancing the need for doing justice on the merits, the cost of
deposing Dr. Michals should not be shifted to the defendants. Although it
is within the discretion of the district court to shift the cost,
failed to meet his burden of showing that "manifest injustice" would
otherwise result. Fed.R.Civ.P. 26(b)(4). Here, the record indicates that
Plaintiff was able to retain and depose his own expert witness. Thus, he
is able to make out a prima facie case. In addition, Plaintiff's reliance
on Reed falls short. Plaintiff has neither alleged nor shown "a scarcity
of information" in Dr. Michals' report. Contrary to Reed, Plaintiff here
is not forced to undertake the deposition because of inadequacies of the
defense expert report. Here, there is no evidence that Dr. Michals'
report is inadequate in any way. Plaintiff desires to take Dr. Michals'
testimony in order to determine his qualifications to opine on
Plaintiff's medical condition. This, seemingly, would be very easily
challenged at trial. In any event, it falls short of the sort of "ambush
at trial" that Reed sought to prevent.
Manifest injustice is a "stringent standard". Fisher-Price, Inc. v.
Safety 1st, Inc., 217 F.R.D. 329, 330 (D.DE 2003). Plaintiff has not
demonstrated that shifting the cost of discovery to Defendants would
prevent manifest injustice.
REASONABLENESS OF FEES
In the alternative, Plaintiff argues that Dr. Michals' fees are
unreasonable and should be reduced. In determining whether a fee request
pursuant to Rule 26(b)(4)(C) is reasonable:
[C]ourts consider seven criteria: (1) the witness's
area of expertise; (2) the education and training
required to provide the expert insight that 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 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 assist the court in balancing the interest
implicated by Rule 26. Fisher-Price, 217 F.R.D. at
Ultimately, it is in the court's discretion to set an amount that it
deems is reasonable. Id. "Implicit in the above factors is that a `rich'
party should not be allowed to agree to pay excessively
high fees to its expert in order to prevent a `poorer' opposing party
from being able to afford to depose the expert." EEOC v. Johnson &
Higgins, Inc., 1999 WL 32909, 4 (S.D.N.Y. 1999). When parties offer no
useful information about the factors, the court may focus on the rate the
expert usually charges and the rate the expert charges the retaining
party tempered by the court's sense of what is reasonable. Id. Courts most
often reduce expert fee requests when the expert seeks to charge the
opposing party a higher rate than the expert charges the retaining party.
The issue is whether Dr. Michals' rate of $2,550.00 for the first two
hours of deposition testimony and $500.00 each additional hour is
reasonable. It may very well be that Dr. Michals' fees are unreasonable.
However, Plaintiff offers no evidence in support of its contention other
than the rate charged by Plaintiff's expert. Even when making that
argument, Plaintiff does not show that Plaintiff's expert's credentials
are comparable to those of Dr. Michals (to imply that Dr. Michals' fees
are unreasonable). There is also no evidence to suggest Defendants
retained Dr. Michals' services knowing that Plaintiff would not be able
to afford to depose the witness. Defendants suggest that they retained
Dr. Michals because of his excellent credentials and esteem in the
community. Absent a showing by the plaintiff via any of the seven
enumerated criteria that Dr. Michals' fees are unreasonable, the court
concludes that the rate charged is reasonable.
Plaintiff has failed to meet the stringent standard of showing that
shifting the cost of deposing Defendants' expert witness to the
defendants would prevent manifest injustice. Additionally, Plaintiff has
failed to provide any evidence for this court to conclude, under the
seven-criteria analysis posed by Fisher-Price that Dr. Michals' fees are
unreasonable. Absent a showing on either issue, Plaintiff's motion is
AND NOW, this 5th day of January, 2004, upon consideration of Plaintiff
Orlando Delgado's Motion for Relief from Expert Fees and Defendants,
Lehigh County Prison, Edward Sweeney, Cindy Egizio, and Nancy Afflebach's
Response to Plaintiff's Motion for Relief from Expert Fees, it is hereby
ORDERED by the Court that Plaintiff's Motion for Relief from Expert Fees
(Docket Entry No. 36) is DENIED.