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Basilica v. Hawes

United States District Court, D. Connecticut

October 14, 2016

ANTHONY BASILICA, Administrator of the Estate of Robert Bergeson
v.
PATRICK HAWES and KRISTIN COIT

          RULING ON PLAINTIFF'S MOTIONS TO COMPEL PAYMENT OF EXPERT FEES

          Joan Glazer Margolis U.S. Magistrate Judge.

         On 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).[1]

         On May 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), [2] and plaintiff's reply brief was filed the following day. (Dkt. #77).[3] The day thereafter, May 6, 2016, U.S. District Judge Jeffrey A. Meyer referred the motion to this Magistrate Judge. (Dkt. #78).[4]

         On July 20, 2016, plaintiff filed his Supplemental Motion to Compel Payment of Experts' Fees (Dkt. #90), [5] 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).[6] (See also Dkts. ##48, 57-58 (reducing hourly rate of defendants' expert witness, Dr. William Lewinski, from $950 to $550)).

         For the 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.

         I. DISCUSSION

         Plaintiff 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)[7] 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)[8] 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).

         With 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, 900[9] (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).

         Plaintiff 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).

         Rule 26 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).

         Applying these standards, this Magistrate Judge finds the following:

         (1) For 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 ...


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