Are there any limits to how much an expert witness can charge for time spent appearing for a deposition? The court rule requires the party taking an expert’s deposition to pay a reasonable fee for the expert’s appearance. However, there has been no published or unpublished opinion in the New Jersey Supreme Court or Appellate Division defining the term “reasonable fee”. A recent law division case has just been approved for publication that tackles this question.
In , the defendant notified the plaintiff of an intent to take the deposition of plaintiff’s expert neuro-surgeon. Plaintiff indicated that the expert’s fee for attending a deposition was $1,000 per hour with a minimum fee of $3,000 in addition to $500 base preparation time fee that could increase based upon the volume of materials to be reviewed. Defendant asserted that this fee was excessive and moved to have the court set the fee.
The court held that, as a general rule, the party seeking reimbursement of deposition fees bears the burden of proving reasonableness of the fees sought, but, ultimately, the court uses its discretion to resolve the issue. To support the expert’s hourly rate, the plaintiff provided the fee schedules of three other neurological surgeons based in the area that were all comparable to the rate sought.
Notwithstanding this proof, the court rejected the notion that the defendant must pay the plaintiff’s expert based on what the majority of similarly credentialed experts charge. The court stated that the issue is not how much money the experts charge, but rather what is a reasonable fee for a defendant to pay. In reaching this decision, the court recognized that an expert may well require a higher pay than what is reasonable for a party to pay. Implicit in his holding that the defendant only need pay $750 per hour is the understanding that the proponent of the expert may well have to make up the shortfall.
As for preparation time, the court held that the defendant need not pay for the expert to prepare the case for the opposing party. As such, the party proposing the expert must pay preparation time.
This is a recurring issue whenever an expert deposition is scheduled. While in this case, it was the defendant seeking to rein in expert deposition costs, the essential holding applies equally among the parties.
Thanks to Steve Kim for his contribution.