Buskey v. Ciocchi, No. 812-11-09 Wrcv (Hayes, J., Feb. 16, 2011)

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
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                                                          STATE OF VERMONT

SUPERIOR COURT                                                                                         CIVIL DIVISION
Windsor Unit                                                                                           Docket No. 812-11-09 Wrcv

                                                                         |
Theresa M. Buskey and                                                    |
Gabriel T. Buskey,                                                       |
 Plaintiffs,                                                             |
                                                                         |
 v.                                                                      |
                                                                         |
John S. Ciocchi, MD, and                                                 |
Surgical Services of Springfield, Inc.,                                  |
 Defendants                                                              |
                                                                         |

                          DECISION ON MOTION TO COMPEL PAYMENT OF EXPERT FEES

           The plaintiffs have filed a motion to compel the defendants, under V.R.C.P. 26(b)(4)(C),

to pay the costs of their expert witness, Dr. Steven Cohen, for preparing for deposition by

defense counsel, and for review of his deposition transcript afterwards. The defendants

oppose this motion.

           Dr. Cohen prepared a written report for this case on February 13, 2010. Almost seven

months later, on August 24, 2010, the defendants deposed him at his office in Rhode Island.

Dr. Cohen prepared for the deposition on August 23rd by reviewing records, and he also met

with the plaintiff’s attorney on the morning of the deposition for additional preparation. The

plaintiffs do not seek compensation for the time they spent preparing on the morning of the

deposition. The plaintiffs do argue, however, that the defendants should be responsible for

paying Dr. Cohen for his time for review of records prior to the deposition, because this time

assisted and shortened the time of the deposition. Had he not reviewed those records,
plaintiffs argue, Dr. Cohen would have had to refer to medical records frequently during his

deposition to refresh his recollection. The plaintiffs therefore ask that the defendants be

ordered to pay for the 2.5 hours spent by Dr. Cohen the day before the deposition reviewing

records, at his “legal review” rate of $650 per hour, for a total of $1,625.

       The defendants oppose the request, arguing that preparation for a deposition, even by

an expert witness, is not compensable under V.R.C.P. 26(b)(4)(C). The defendants

acknowledge that there are federal cases under the identical federal rule that do permit an

order for the party deposing a listed expert to pay for the expense of the expert’s preparation

for the deposition, but argue that those cases are inconsistent with both longstanding Vermont

practice and the competing line of federal cases that does not approve the award of such costs.

       The court has reviewed the case law and other authorities cited by the parties, and the

parties’ well-written memoranda, and concludes that an order for the defense to pay some of

the costs of the witness’s preparation is warranted here.

       V.R.C.P. 26(b)(4)(C), related to expert witnesses, provides that “[u]nless manifest

injustice would result, . . . the judge shall require that the party seeking discovery pay the

expert a reasonable fee for time spent in responding to discovery under this paragraph.”

(Emphasis added). The Reporter’s Notes to the 1996 Amendment to Rule 26 notes that Rule 26

was amended generally at that time “in partial adoption of the extensive 1993 amendments to

Federal Rules 26-37,” and confirms that the “amendment of 26(b)(4)(C) makes clear that the

discovering party will ordinarily pay the expert’s fees and expenses.” The Vermont Rule is in

fact identical to the Federal Rule. The court has been unable to find any Vermont case law that




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provides any direct guidance as to the application of the rule to the cost of an expert’s

preparation for deposition.

         There are many federal cases, however, that have addressed this question. The case

that best summarizes and outlines all the approaches, and the arguments in favor of them, is

Fiber Optic Designs, Inc., v. New England Pottery, LLC, 262 F.R.D. 586 (D. Colo. 2009).1 In that

patent-infringement case, the plaintiff deposed the defendant’s expert witness, and defense

counsel sought reimbursement from the plaintiff for the deponent’s 16.1 hours of preparation

time. The court granted the request, but only for four hours, after a lengthy discussion. In its

discussion, the court first noted that several courts had found that the deposing party had no

obligation to pay for an expert’s preparation, because:

                  [T]ime spent ‘preparing’ for a deposition entails not only the
                  expert's review of his conclusions and their basis, but also
                  consultation between the responding party's counsel and the
                  expert to best support the responding party's case and to
                  anticipate questions from seeking party's counsel. An expert's
                  deposition is in part a dress rehearsal for his testimony at trial
                  and thus his preparation is part of trial preparation. One party
                  need not pay for the other's trial preparation.

Id. at 591 (citation omitted). The Colorado federal district court agreed that this was logical,

but also noted that:

                  the party noticing the expert's deposition certainly has the ability
                  to influence when those preparation hours are expended.
                  Indeed, by noticing an expert's deposition before summary
                  judgment motions are filed, a party may require an expert to
                  prepare for a deposition that proves completely unnecessary, or
                  to duplicate preparation time that could be avoided if the
1
 Other cases reviewed by the court, many of which were cited in Fiber Optic, include: Packer v. SN Servicing Corp.,
243 F.R.D. 39 (D. Conn. 2007); Lamere v. New York State Office for the Aging, 223 F.R.D. 85 (N.D.N.Y. 2004); Boos v.
Prison Health Services, 212 F.R.D. 578 (D. Kan. 2002); State of New York v. Solvent Chemical Co., Inc., 210 F.R.D. 462
(W.D. N.Y. 2002); M.T. McBrian, Inc., v. Liebert Corp., 173 F.R.D. 491 (N.D. Ill. 1997); and S.A.Healy Co. v. Milwaukee
Metropolitan Sewerage District, 154 F.R.D. 212 (E.D. Wis. 1994).


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                  deposition were taken closer to trial. Having made the tactical
                  decision to prematurely take an expert's deposition, it is not
                  unreasonable to require the noticing party to pay for the
                  preparation that inevitably preceded the deposition
                  examination.2

Id.

         The Colorado court then went on to discuss the arguments from the cases which had in

fact required the deposing party to pay for an expert’s preparation time. The arguments in

favor of such an order include, as the plaintiff argues here, that preparation by the expert

facilitates the deposition process by avoiding interruptions to enable the witness to refresh his

or her recollection by consulting other documents that could have been reviewed in advance.

Id. at 591–592. Also, because Rule 26(b)(4)(A)(i) already requires written disclosure of the

substance of the facts and opinions to which each expert is expected to testify and the grounds

for all such opinions, if a party decides to depose such a witness as well, then they have created

the need for the witness to prepare for testimony twice, once for the deposition, and again for

trial, so there is no unfairness in requiring them to pay for it. Id. at 592. The Colorado court

agreed that this argument was also logical, but pointed out that it “fails to acknowledge a

critical distinction between a deposition and preparation. The lawyer taking the expert

deposition has an ability to control the length of the examination and thereby limit the expert

fees incurred as a result of that deposition. Counsel does not have a similar ability to control or

limit the time allegedly spent in deposition preparation.” Id.



2
  See also 8A Wright, Miller, Kane & Marcus, Federal Practice and Procedure: Civil 3d § 2034 (“Compensation for
time spent preparing for the deposition has proved a divisive issue. . . . [T]he open-ended possibility that much
ordinary trial preparation might be charged to the opponent by this device warrants caution. At the same time, it
is hard to deny that the deposition-preparation process, like the deposition itself, requires additional effort by the
expert for which he or she is likely to insist on being paid.”).


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       The Colorado court then discussed a third line of “hybrid” cases, which require the

deposing party to pay expert preparation fees, but only in very complex cases, or under unusual

circumstances, such as where there was a long period of time between the expert’s report and

the deposition. Id. Finally, the Colorado court noted that every court that had required

payment of preparation costs had only ordered the payment of reasonable amounts, and that

several had reduced the requested amounts substantially. Id. at 592-593.

       Here, applying a similar analysis, this court concludes that under the Vermont rule,

expert preparation time may be included in the “reasonable fee for time spent in responding to

discovery” that the party seeking discovery must pay under Rule 26(b)(4)(C). In determining

what is a “reasonable fee,” all of the factors discussed above should be weighed. These

include: (1) the likelihood that preparation for deposition will reduce the amount of time

required by the non-deposing party in preparing the witness for trial testimony, (2) the

likelihood that the expert’s preparation may reduce the time required to conduct the

deposition because of the necessity of reviewing documents, (3) the amount of time between

the issuance of the expert’s opinions and the deposition, (4) the likely amount of time before

trial, and thus the necessity for repetition of the same preparation for that purpose, (5) the

reasonableness of the time taken for preparation in light of the complexity of the issues, and (6)

the reasonableness of the hourly rate sought.

       In this case, the deposition took place in August 2010, whereas the trial of this case will

not occur sooner than this coming summer. It is therefore likely that plaintiff’s attorney and

the expert himself will have to spend almost the same amount of time preparing for trial that

they spent preparing for the deposition. Yet it is also likely that the deposition “dress



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rehearsal” was useful to plaintiff’s trial preparation and advocacy, and for that reason it would

not be fair to allocate all of the preparation expenses to defendants. See 8A Federal Practice

and Procedure, supra, at § 2034 (cautioning courts against “the open-ended possibility that

much ordinary trial preparation might be charged to the opponent”). For this reason, the court

finds it appropriate to allocate 40% of the preparation time to plaintiffs, in recognition of the

preparation benefits that will accrue at trial.

       Beyond that, the court is unable to determine whether the expert’s review of records

decreased the time for the deposition significantly. There was a seven-month gap between the

expert’s written report and the deposition, which is certainly a long enough period to require at

least some review of the expert report and related documents in order to testify. This expert

took 2½ hours to review the records and his report; this does not seem excessive. The hourly

rate seems high, but it is the same rate that this expert apparently charges for all aspects of this

kind of work. Based upon these considerations, the court approves the quoted rate, and finds

that 2½ hours was a reasonable amount of time to spend preparing for the deposition

(although, as noted above, only 60% of that time will be allocated to defendants).

       In light of all of the above factors, the court concludes that the defendant should pay for

1½ hours of the expert’s preparation, at his quoted rate, for a total of $975. It is so ordered.


       Dated at Woodstock this ___ day of February, 2011.



                                                  _____________________________
                                                  Katherine A. Hayes
                                                  Superior Court Judge




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