United States District Court, E.D. Pennsylvania
January 12, 2004.
LISA HARRIS FISHER and CHARLES FISHER, Plaintiffs,
ACCOR HOTELS, INC., Defendant
The opinion of the court was delivered by: JAMES KELLY, Senior District Judge
MEMORANDUM AND ORDER
Presently before the Court is a Motion for Fees and Expenses filed by
Plaintiffs Lisa Harris Fisher and Charles Fisher ("Plaintiffs") and the
Response thereto filed by Defendant Accor North America, Inc.
("Defendant"). Plaintiffs' counsel, John C. Capek, Esquire ("Capek")
filed the instant motion seeking to recover his expenses relating to
defense counsel Edward Bigham, Esquire's ("Bigham") deposition of
Plaintiffs' expert witness, Julius Pereira, III, A.I.A. ("Pereira"), on
July 29, 2003 from 3:10 p.m. until 5:55 p.m. Capek avers that, during the
deposition, Pereira was questioned about his own expert report and
Defendant's experts' reports, as well as his qualifications, experience,
education and knowledge in the field of safety engineering. Defendant
concedes that Pereira is entitled to payment of a reasonable fee for the
time spent at his deposition, and there is no dispute that Defendant has
already paid Pereira that fee of $825.00.
Capek now seeks reimbursement of other expenses related to
Pereira's deposition, contending that Federal Rule of Civil Procedure
26(b)(4)(B)*fn1 and (C)*fn2 authorizes the relief requested.
Specifically, Capek seeks reimbursement of the following expenditures: (1)
$1,000.00 for the cost of retaining local counsel, David Morrison,
Esquire, to appear at Pereira's deposition as a result of Capek's
scheduling conflict; (2) $221.08 for a copy of a deposition transcript
and the exhibits attached thereto; and (3) $275.00 that Pereira billed
Plaintiffs for one hour of time that he spent preparing for his July 29
As an expert whose opinion would be presented at trial, Pereira was
properly deposed by Defendant in accordance with Rule
26, which provides that "[a] party may depose any person who has been
identified as an expert whose opinions may be presented at trial."
Fed.R.Civ.P. 26(b)(4)(A). That Pereira was paid for his appearance at the
deposition is also proper under Rule 26, which provides that "the party
seeking discovery pay the expert a reasonable fee for time spent in
responding to discovery under this subdivision." Fed.R.Civ.P. 26(b)(4)(C).
Less clear under Rule 26's "reasonable fee" mandate, however, is whether
the cost of time spent by an expert preparing for a deposition should
also be borne by the party seeking such discovery. Compare M.T. McBrian
v. Liebert Corp., 173 F.R.D. 491, 493 (N.D. Ill. 1997)(refusing to
include preparation time in "reasonable fee" calculation since case was
not complex and there was not considerable lapse of time between expert's
work and deposition), and Benjamin v. Gloz, 130 F.R.D. 455, 457 (D.C.
Colo. 1990)(determining that party not required to pay expert for
preparation time), and Rhee v. Witco Chem. Corp., 126 F.R.D. 45, 47 (N.D.
Ill. 1989) (excluding preparation time), with Fleming v. United States,
205 F.R.D. 188, 190 (W.D. Va. 2000)(reimbursing expert for five hours of
time spent preparing for deposition as reasonable in light of issues on
which expert was expected to provide testimony, amount of materials to be
reviewed and length of report furnished by expert), and S.A. Healy Co.
v. Milwaukee Metro. Sewerage Dist., 154 F.R.D. 212, 214 (E.D. Wis.
1994)(reimbursing for preparation time where damage issues were
complex and deposition was to occur five months after expert prepared
lengthy report), and Hose v. Chicago and North Western Transp. Co.,
154 F.R.D. 222, 228 (S.D. Iowa 1994)(requiring payment for neurologist's
time spent reviewing medical reports in preparation for deposition since
more costly if expert attempted to refresh memory by review of records at
deposition). But see, Collins v. Village of Woodridge, 197 F.R.D. 354,
357 (N.D. Ill. 1999) (finding preparation time compensable regardless of
complexity, that "[t]ime spent preparing for a deposition is, literally
speaking, time spent in responding to discovery").
There has been no showing that the issues in this case are complex,
that the expert report is lengthy, or that there was a considerable lapse
of time between the expert's work and the deposition. Without intending
to minimize the injuries alleged by Plaintiffs, we find that the issues
Pereira addressed were not complex, and that there was no considerable
lapse of time between his work and the deposition. In fact, Pereira's
expert report dated May 15, 2003 is four pages long and was supplemented
by a one-page letter dated May 23, 2003, following his physical
inspection of the slip-and-fall site, a hotel bathtub, on May 16, 2003.
Little more than two months later, Pereira was deposed by Defendant's
counsel. In light of these facts, we find that Defendant need not
reimburse Capek for Pereira's deposition preparation time.
Plaintiffs' remaining requests are also denied since the
portion of Rule 26(b)(4)(C) that Capek relies upon as authorizing
such relief, specifically, the portion providing that "the court shall
require the party seeking discovery to pay the other party a fair portion
of the fees and expenses reasonably incurred," applies only to discovery
under subdivision (b)(4)(B) relating to an expert who is not expected to
be called as a witness at trial. As previously explained, Plaintiffs
intended to call Pereira as an expert at trial and, thus, the provision
relied upon is inapplicable here. Furthermore, Plaintiffs never requested
to reschedule Pereira's deposition on account of Capek's scheduling
conflict, or otherwise indicated that there they would suffer any
hardship, such that Defendant should be required to pay local counsel's
fee. Finally, Plaintiffs cannot demonstrate that the cost of Pereira's
deposition transcript relates, in any way, to time spent in responding to
For these foregoing reasons, having considered Plaintiffs' Motion for
Fees and Expenses (Doc. No. 20) and the Defendant's Response thereto
(Doc. No. 21), IT IS ORDERED that Plaintiffs' Motion is DENIED.