United States District Court, D. Connecticut
ANTHONY BASILICA, Administrator of the Estate of Robert Bergeson
PATRICK HAWES and KRISTIN COIT
RULING ON PLAINTIFF'S MOTIONS TO COMPEL PAYMENT
OF EXPERT FEES
Glazer Margolis U.S. Magistrate Judge.
December 2, 2014, plaintiff Anthony Basilica, Administrator
of the Estate of Robert Bergeson, commenced this lawsuit,
filed under 28 U.S.C. § 1983, against Connecticut State
Police Officers Patrick Hawes and Kristin Coit, in connection
with the fatal shooting of Bergeson on June 13, 2013 (Dkt.
#1); an Amended Complaint was filed on April 27, 2015. (Dkt.
#34). Defendants' Answer and Affirmative Defenses were
filed on May 8, 2015. (Dkt. #35).
3, 2016, plaintiff filed his Motion to Compel Payment of
Experts' Fees (Dkt. #75), with respect to the expert
depositions of two of his experts, Lisa R. Fournier, Ph.D.,
held by video-conference on February 17 and 24, 2016, and Dr.
William Terrill, also held by video-conference on January 29,
2016. Defendants filed their brief in opposition and Motion
to Determine Reasonable Fees the next day (Dkt. #76),
plaintiff's reply brief was filed the following day.
(Dkt. #77). The day thereafter, May 6, 2016, U.S.
District Judge Jeffrey A. Meyer referred the motion to this
Magistrate Judge. (Dkt. #78).
20, 2016, plaintiff filed his Supplemental Motion to Compel
Payment of Experts' Fees (Dkt. #90),  regarding the
expert deposition of plaintiff's expert, Dr. Michael
Baden, taken on February 12, 2016. Defendants filed their
objection and Motion to Determine Reasonable Fees six days
later. (Dkt. #93). (See also Dkts. ##48, 57-58
(reducing hourly rate of defendants' expert witness, Dr.
William Lewinski, from $950 to $550)).
reasons stated below, plaintiff's Motions to Compel
Payment of Experts' Fees and defendants' Motions to
Determine Reasonable Fees (Dkts. ##75, 76, 90, 93) are
granted in part.
seeks payment for his four experts as follows: (1) in the
amount of $8, 550 (at a hourly rate of $600, for 4.5 hours of
preparation and ten hours of deposition) for Dr. Fournier;
(2) in the amount of $2, 600 (a $2, 000 deposition flat fee
for a 3.1 hour deposition, plus $200 per hour for three hours
of preparation time, which equates to $426.23 per hour
overall) for Dr. Terrill; (3) in the amount of $4,
600 for Reginald Allard, who was deposed on April 28, 2016
(for ten hours at $250 per hour for document production, one
hour of travel time at $100 per hour, and eight hours of
deposition at $250 per hour); and (4) in the amount of $8,
500 for Dr. Baden (his customary deposition fee for a full
day of his time, which equates to $1, 062.50 per hour
overall). (Dkt. #75, at 1-2; Dkt. #76, at 2-3, 9-12; Dkt.
#77, at 2-6; Dkt. #90, at 1, 3; Dkt. #93, at 2-5, 7-9).
respect to Dr. Fournier, defendants offered to pay $200 per
hour for 4.5 hours of her preparation time and $400 per hour
for ten hours of her deposition testimony, for a total of $3,
(Dkt. #76, at 2); with respect to Dr. Terrill, defendants
have offered to pay $200 per hour for his three hours of
preparation and $200 per hour for his 3.1 hour deposition,
for a total of $1, 220 (Dkt. #76, at 2); with respect to
Allard, defendants have offered to pay $250 per hour for five
hours of preparation and $250 per hour for seven hours of
deposition, plus $100 for one hour of travel time, for a
total of $3, 100 (Dkt. #76, at 2-3, 9-14); and with respect
to Dr. Baden, defendants have offered to pay $650 per hour
for his two hours of preparation time and three hours of
deposition, and $325 per hour for three hours of travel, for
a total of $4, 225. (Dkt. #93, at 2-3, 5, 8-9).
responded that defendants' position regarding Dr.
Fournier is "nonsensical[, ]" as she is "more
qualified" than defendants' expert, Dr. William
Lewinski, who previously was awarded $550 per hour for his
deposition testimony in this litigation; that Dr.
Terrill's request is "more than reasonable";
and that defendants do not object to Allard's hourly fee
but rather to the hours expended by him in his preparation.
(Dkt. #77, at 2-6).
provides that a “party may depose any person who has
been identified as an expert whose opinions may be presented
at trial.” Fed.R.Civ.P. 26(b)(4)(A). Rule
26(b)(4)(E)(i) mandates that “[u]nless 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 under Rule 26(b)(4)(A) or
(D) . . . .” The purpose underlying Rule 26(b)(4)(E) is
“to compensate experts for their time spent
participating in litigation and to prevent one party from
unfairly obtaining the benefit of the opposing party's
expert's work free of cost.” Goldwater v.
Postmaster Gen. of U.S., 136 F.R.D. 337, 339 (D. Conn.
1991)(Smith, MJ)(citations omitted). In determining what is a
reasonable expert fee, courts in the Second Circuit generally
consider six factors:
(1) the witness's area of expertise; (2) the education
and training that is required to provide the expert insight
which is sought; (3) the prevailing rates of other comparably
respected available experts; (4) the complexity of the
discovery responses provided; (5) the cost of living in the
particular geographic area; and (6) any other factor likely
to be of assistance to the court in balancing the interest
implicated by Rule 26.
Cottrell v. Bunn-O-Matic Corp., No. 12 CV 1559
(WWE), 2014 WL 1584455, at *1 (D. Conn. Apr. 21,
2014)(Fitzsimmons, MJ)(citations omitted). In addition,
courts consider “(1) the fee actually being charged to
the party who retained the expert; and (2) fees traditionally
charged by the expert on related matters.” Conte v.
Newsday, Inc., No. CV 06-4859 (JFB)(ETB), 2012 WL 37545,
at *2 (E.D.N.Y. Jan. 9, 2012)(citation omitted).
these standards, this Magistrate Judge finds the following:
Dr. Fournier - Defendants assert that Dr. Fournier's
charge was to evaluate the quality of the research of, and
the researched relied upon by, defendants' expert, Dr.
Lewinski. (Dkt. #76, at 9). Though defendants argue that Dr.
Lewinski is a “far more experienced and sought-after
expert witness” (Dkt. #76, at 10), both Dr. Lewinski
and Dr. Fournier appear to have the same level of education
in that they each have attained a Ph.D. in psychology and are
testifying on the same subject. (Dkt. #76, at 10). As this
Court has already considered the Cottrell factors
with respect to defendants' parallel expert and found
$550 per hour to be the ...