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Crawford v. American Legion Ambulance Association

December 30, 2009

VERNON CRAWFORD, PLAINTIFF,
v.
AMERICAN LEGION AMBULANCE ASSOCIATION, DEFENDANTS.



The opinion of the court was delivered by: Karen M. Williams United States Magistrate Judge

[Doc. No. 28]

MEMORANDUM OPINION AND ORDER

This matter is before the Court by way of motion filed on behalf of Plaintiff by his counsel David P. Heim, Esquire, to determine the deposition fee of Plaintiff's expert Neurosurgeon, Dr. John K. Ratliff, and to permit Plaintiff to conduct Dr. Ratliff's videotaped trial deposition immediately following the discovery deposition. Defendants, American Legion Ambulance Association and Robyn L. Crispin, oppose this motion. The Court has reviewed the submissions of the parties pursuant to Fed. R. Civ. P. 78. For the reasons discussed more fully below, the Court finds that a reasonable hourly rate for Dr. Ratliff's discovery deposition is no more than $600. Plaintiff's request to conduct Dr. Ratliff's videotaped trial deposition immediately after the discovery deposition is denied.

In his Complaint, Plaintiff avers that on June 8, 2007, while stopped at a red light, he was rear-ended by Defendant Crispin who was operating an ambulance owned by Defendant American Legion Ambulance. (Certification of David P. Heim, Esquire ("Heim Cert.") at ¶ 2.) As a result of the accident, Plaintiff avers that he suffered severe and debilitating injuries to his spine which has lead to "myelopathy" a condition that results in the loss of functioning of the spine. (Heim Cert. at ¶ 3.) Dr. Ratliff is one of Plaintiff's treating physician who also consulted with Plaintiff about spinal surgery. (Id. at ¶¶ 4 & 5.)

First, the Court will address Plaintiff's motion to set a reasonable fee for Dr. Ratliff.

Federal Rule of Civil Procedure 26(b)(4)(C) provides that unless manifest injustice would result, the court must 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). Courts have considered the following factors in determining whether an expert's fee is reasonable: 1) the expert's area of expertise; 2) the expert's necessary training and education; 3) the prevailing rates for comparable expert witnesses; 4) the nature, quality and complexity of the discovery provided; 5)the cost of living in the relevant community; 6) the fee being charged by the expert to the party who retained him; 7) fees traditionally charged by the expert on related matters; and 8) any other factor likely to be of assistance to the court in balancing the interests implicated by Rule 26. Massasoit v. Carter, 227 F.R.D. 264, 265 (M.D.N.C. 2005); Cabana v. Forcier, KNA, 200 F.R.D. 9, 15-16 (D. Mass. 2001) (citing Coleman v. Dydula, 190 F.R.D. 320, 324 (W.D.N.Y. 1999)).

To support his contention that Dr. Ratliff's deposition fee of $5,000 for the first hour and $2,000 for each additional hour is a reasonable expert fee, Plaintiff primarily relies on Dr. Ratliff's area of expertise, necessary training and education. Specifically, Plaintiff's submissions point to Dr. Ratliff's impressive and extensive credentials including his:

* surgery specialty;

* sub-specialty in spinal nerve compression (which is directly at issue in this case);

* national recognition as an author, lecturer and researcher;

* sub-specialty in peripheral nerve disorders; and * having authored fifteen (15) peer reviewed publications and eight (8) medical treatises.

Further, with respect to the fees traditionally charged by Dr. Ratliff on related matters, Plaintiff directs the Court to the fee schedule set by Thomas Jefferson Department of Neurosurgery which, according to the University, has been paid in other cases and has not been reduced in any case.

Finally, in attempting to establish prevailing rates for comparable expert witnesses, Plaintiff provided the fee schedule of Dr. David H. Clements, a board certified orthopaedic surgeon who performs spinal surgery. Dr. Clements' deposition fee (non-video) like Dr. Ratliff's fee is set by the faculty practice - Cooper Hospital. However, Dr. Clements deposition fee of $3,200, is for the entire deposition and not an hourly rate.

Defendants contend that Dr. Ratliff's deposition fee of $5,000 for the first hour and $2,000 for each additional hour is unreasonable because it well exceeds the fees of experts generally. To this end, Defendants point to a number of cases within this circuit that it contends sets the parameters for reasonable expert fees between $200 and $500 an hour. However, none of the fees cited were for neurosurgeons. In addition, according to the Defendants, Dr. Ratliff's discovery deposition fee should be no more than $500 an hour to be consistent with the deposition fees of the other experts in this case. In particular, Defendants submit that the deposition fee of Dr. William Barrish, Plaintiff's treating orthopaedist, was $1,500 for the ...


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