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Fint v. Brayman Construction Corp.

United States District Court, S.D. West Virginia, Beckley Division

January 7, 2019

DARRELL FINT, Plaintiff,
v.
BRAYMAN CONSTRUCTION CORPORATION, a foreign corporation, Defendant.

          MEMORANDUM OPINION AND ORDER

          Cheryl A. Eifert United States Magistrate Judge

         Pending is the Motion of Brayman Construction Corporation to Set Reasonable Expert Witness Rate. (ECF No. 136). Plaintiff filed a response in opposition to the Motion, (ECF No. 144), and Brayman Construction Corporation (“Brayman”) replied. (ECF No. 148). On January 3, 2019, the parties appeared, by counsel, for a hearing on the Motion. For the reasons that follow, the Court GRANTS the Motion and sets a reasonable expert witness fee of $385 per hour for the time spent by Plaintiff's expert, Mr. Stephen Petty, P.E., C.I.H., in responding to Brayman's request for his deposition. The total deposition fee shall be calculated by multiplying the above hourly rate with the number of hours Mr. Petty spent preparing for the deposition, participating in the deposition, and reviewing the deposition transcript for signature. As emphasized at the hearing, the time spent on deposition preparation and transcript review must be reasonable; therefore, the parties are ORDERED to meet and confer and agree on the total number of hours that constitute Mr. Petty's response to discovery under Federal Rule 26(b)(4)(E).

         I. Relevant Facts

         This case involves a work place injury that occurred at a construction site in Hinton, West Virginia. While assisting a drill crew, Plaintiff fell backwards and headfirst into an open hole approximately nine feet deep, resulting in significant spinal injuries. Plaintiff alleges in his Complaint that Brayman, his employer, violated a number of industry, regulatory, and statutory safety standards, making Brayman liable to Plaintiff for monetary damages under West Virginia's deliberate intent statute. In support of his claim, Plaintiff identified Mr. Stephen Petty as an expert witness.

         On July 20, 2018, Brayman took Mr. Petty's deposition, which lasted approximately five hours. Early in the deposition, Mr. Petty provided Brayman's counsel with his standard fee schedule. According to the fee schedule, Mr. Petty charged $385 per hour to perform expert consulting services, and $3000 per half day (up to four hours) or $5, 000 per day (for more than four and up to eight hours) for deposition or trial testimony. In this case, Mr. Petty billed Brayman $5, 000 for his deposition as it lasted more than four, but less than eight, hours.

         Upon receiving the invoice, Brayman objected to the flat rate amount and argued that it was excessive. By way of compromise, Brayman offered to pay Mr. Petty $250 per hour for his time, pointing out that two other safety experts in the case charged $275 for their deposition time. In response, Plaintiff rejected the offer, stating that Mr. Petty charged the flat fee to account for losing an entire work day to the deposition. Moreover, Plaintiff indicated, Brayman was told about the flat fee at the outset of the deposition and proceeded nonetheless. Therefore, in all fairness, Brayman could not arbitrarily alter the terms of the fee schedule after the deposition. When the parties could not resolve their differences, the Motion to set a reasonable fee was filed.

         II. Discussion

         Federal Rule of Civil Procedure 26(b)(4)(E)(i) states:

Unless manifest injustice would result, the court must require that the party seeking discovery:
(i) pay the expert a reasonable fee for time spent in responding to discovery under Rule 26(b)(4)(A) or (D);

Here, Brayman sought discovery under Rule 26(b)(4)(A) when it requested the deposition of Stephen Petty, a “person who has been identified as an expert whose opinions may be presented at trial.” See Fed. R. Civ. P. 26(b)(4)(A). Consequently, unless “manifest injustice” would result, Brayman is responsible for paying Mr. Petty a reasonable fee for his time. This initial hurdle is easily cleared as both parties agree that a reasonable fee is due to Mr. Petty.

         Brayman contends that Mr. Petty's $5, 000 fee is excessive, because he is effectively charging $1, 000 per hour for his deposition time. Given that the other three experts in this case have hourly rates of $275, $275, and $375 for their deposition time, Mr. Petty's $1, 000 per hour charge is unreasonable on its face. Furthermore, Brayman argues that Mr. Petty, who is a chemical engineer, has less experience and training than the other experts in the field of work place safety. As such, his billing rate should be less, not more, than the others.

         In contrast, Plaintiff indicates that Mr. Petty is highly respected and nationally recognized as an expert in work place injuries. In addition to having familiarity and experience in interpreting and applying safety regulations, Mr. Petty has written textbooks on forensic engineering and has testified in numerous high profile cases. Plaintiff argues that Mr. Petty's $5, 000 fee is reasonable considering the amount of time spent, his willingness to appear for deposition in Ohio, and the complexity of his opinions.

         The undersigned finds Mr. Petty's $5, 000 charge to be unreasonable; primarily, because it is a flat fee charge. The undersigned agrees with other courts that have considered this issue and concluded that a flat fee does not comply with the intent of Rule 26(b)(4)(E)(i), which requires “some reasonable relationship between the services rendered and the remuneration to which an expert is entitled.” Anthony v. Abbott Labs.,106 F.R.D. 461, 464 (D.R.I. 1985). By its nature, “a flat fee runs counter to this principle.” Mannarino v. United States, 218 F.R.D. 372, 375 (E.D.N.Y. 2003) (holding “[i]t is simply not reasonable to require parties in every case to pay the same amount regardless of the actual ‘services rendered' or ‘time spent complying with the requested discovery.'”); Nnodimele v. City of New York, No. 13-CV-3461, 2015 WL 4461008, at *2 (E.D.N.Y. July 21, 2015) (“Flat fees are disfavored because courts expect some reasonable relationship between the services rendered and the remuneration to which an expert is entitled.”) (internal quotations and citation omitted); Dinkel v. MedStar Health, Inc., No. CV 11-0998 (CKK-AK), 2014 WL 12792993, at *7 (D.D.C. Mar. 20, 2014) (agreeing with other courts that a flat fee does not ensure what Rule 26 requires-a reasonable relationship between the services rendered and the remuneration to which the expert ...


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