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In re American Medical Systems, Inc. Pelvic Repair Systems Product Liability Litigation

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

June 17, 2019

IN RE AMERICAN MEDICAL SYSTEMS, INC. PELVIC REPAIR SYSTEMS PRODUCT LIABILITY LITIGATION THIS ORDER RELATES ONLY TO CIVIL ACTIONS: Anna Carver
v.
AMS, No. 2:16-cv-02539 Lana Chapman
v.
AMS, No. 2:15-cv-13621 Evelyn Copeland
v.
AMS, No. 2:15-cv-11106 Beatrice Dotson
v.
AMS, No. 2:16-cv-04745 Kathy Dover
v.
AMS, No. 2:16-cv-07903 Keri Fletcher
v.
AMS, No. 2:15-cv-14776 Beverly Geraci
v.
AMS, No. 2:15-cv-11743 Justine Groves
v.
AMS, No. 2:15-cv-14341 Angela Hendricks
v.
AMS, No. 2:16-cv-01944 Angela Hopewell
v.
AMS, No. 2:16-cv-04104 Bonita Klein
v.
AMS, No. 2:15-cv-13171 Krista Krug
v.
AMS, No. 2:16-cv-02303 Elaine Langlois
v.
AMS, No. 2:15-cv-16073 Luz Perez
v.
AMS, No. 2:16-cv-02840 Dawn Perreault
v.
AMS, No. 2:16-cv-00196 Evelyn Shill
v.
AMS, No. 2:15-cv-14403

          ORDER

          CHERYL A. EIFERT UNITED STATES MAGISTRATE JUDGE

         Pending before the court are Emergency Motions to Compel the Deposition of Plaintiffs' Expert Ralph Zipper, M.D., filed by American Medical Systems, Inc.[1] The undersigned conducted a telephonic hearing on the Motions on Friday, June 14, 2019. For the reasons that follow, the Court GRANTS the Motions.

         Dr. Ralph Zipper, plaintiffs' causation expert in the above-referenced cases, issued an invoice for his discovery deposition, requiring American Medical Systems, Inc. (“AMS”) to pay him $18, 000 per day, in advance, for four days of testimony, which would cover all sixteen plaintiffs. AMS objected to the demand and asked the Court to order Dr. Zipper to appear for deposition without prepayment and to charge no more than $750 per hour for the time spent at the depositions.

         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)[.]

         The undersigned finds Dr. Zipper's $18, 000 per day 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 is entitled); also Massasoit v. Carter, 227 F.R.D. 264, 267 (M.D. N.C. 2005) (stating that “a flat fee does raise a red flag with respect to whether expert fees are reasonable, and requires the Court to closely scrutinize the situation” and noting that because most depositions vary and are not routinized, “a flat fee is not normally reasonable.”).

         Having found that Dr. Zipper's flat fee is not reasonable, the Court must determine what amount would be reasonable. In making that determination, the following factors are considered:

(1) the witness's area of expertise, (2) the education and training that is required to provide the expert insight that is sought, (3) the prevailing rates for other comparably respected available experts, (4) the nature, quality and complexity of the discovery responses provided, (5) the cost of living in the particular geographic area, (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.

First S. Bank v. Fifth Third Bank, N.A., No. CIV.A. 7:10-2097-MGL, 2014 WL 3868000, at *4 (D.S.C. Aug. 6, 2014), aff'd sub nom. 631 Fed.Appx. 121 (4th Cir. 2015) (quoting Adams v. Memorial Sloan Kettering Cancer Center, 2002 WL 1401979, at *1 (S.D.N.Y. June 28, 2002)). “The party seeking reimbursement of [its] expert witness fees has the burden of demonstrating to the court that the expert's rate and fee are reasonable.” Se-Kure Controls, Inc. v. Vanguard Prod. Grp., Inc., 873 F.Supp.2d 939, 955 (N.D. Ill. 2012). “A guiding principle is that the expert's fee should not be so high as to impair a party's access to necessary discovery or result in a windfall to the expert.” Maxwell v. Stryker Corp., No. 11-CV-01524-REB-KMT, 2012 WL 2319092, at *2 (D. Colo. June 19, 2012).

         Plaintiffs supplied various exhibits in support of their contention that Dr. Zipper's flat fee is reasonable. In addition, Plaintiffs argue that, in general, an expert's regular hourly rate for professional services is presumptively a reasonable rate for deposition. While the exhibits and argument are not persuasive to the extent that this Court does not find a flat fee reasonable, they are useful in addressing the factors for calculating a reasonable amount.

         First looking at Dr. Zipper's education, training, and expertise, Plaintiffs indicate that Dr. Zipper has testified in over 25 transvaginal mesh cases in pelvic mesh multidistrict litigation (“MDL”). He is board certified in female pelvic medicine and reconstructive surgery, as well as obstetrics and gynecology. Dr. Zipper has specialized in urogynecology for eighteen years and has performed thousands of surgeries using the devices at issue in this MDL. He has been a private consultant in developing devices for stress urinary incontinence and pelvic organ prolapse and is the chief executive officer of a medical device company. Dr. Zipper has been a keynote speaker on the topics of pelvic reconstruction surgery, stress urinary incontinence, and pelvic organ prolapse at national meetings sponsored by C. R. Bard, Coloplast, and AMS-all defendants in pelvic mesh MDLs. He was the first surgeon in the United States to perform a single incision sling and routinely treats complications from pelvic mesh. Accordingly, Dr. Zipper is highly qualified as an expert in this MDL and has experience and training at least commensurate with other expert witnesses in the MDL.

         Next, Plaintiffs offer evidence of the prevailing rates for other experts and the fees traditionally charged. According to the documents provided, one expert in the Bard MDL, Dr. Charles Butrick, charges $1, 250 per hour for deposition testimony; another Bard expert, Dr. Donald Ostergard, charges a flat $4, 000 per half day for any type of testimony; in the Ethicon MDL, Dr. Jerry Blaivas charges a flat fee of $7, 500 per half day for deposition testimony; and AMS's own expert in the instant actions, Dr. James Coad, charges $900 per hour for his deposition time. In contrast, AMS does not offer any evidence of prevailing rates, or of fees routinely charged by experts in the MDLs. Instead, AMS relies on cases decided ten to twenty years ago, which found certain expert rates to be excessive and reduced them. In addition to being dated and, therefore, not particularly helpful on identifying prevailing rates, these cases do not involve the same subject matter or expertise present in the instant actions. AMS also provided evidence that Dr. Zipper previously charged $700 per hour for his review of similar cases and is involved in litigation with a plaintiffs' law firm over allegedly excessive billing. Once again, this information is not especially useful in setting a reasonable fee and certainly does not provide a basis for AMS's position that Dr. Zipper's hourly fee should be reduced to $750.

         As to the remaining factors, Dr. Zipper is located in Melbourne, Florida, which has a cost of living similar to West Virginia. The subject matter of the MDL is complex; thus, the deposition testimony will likely be complex as well. To further complicate the matter, Dr. Zipper is required to prepare for testimony regarding sixteen different women. Finally, ...


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