1049 ASYLUM, L.P. v. KINNEY PIKE INSURANCE, INC. ET AL.

2005 Ct. Sup. 10225, 39 CLR 538
No. CV 02-0816344SConnecticut Superior Court Judicial District of Hartford at Hartford
June 23, 2005

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION ON MOTION TO COMPEL PAYMENT OF EXPERT FEE
MILLER, JUDGE.

Plaintiff and defendant Peerless Insurance Company have brought to the Court’s attention their inability to agree on how much plaintiff is to pay for having deposed two of defendant’s disclosed expert witnesses. Defendant moved, on June 3, 2005, for an order compelling plaintiff to pay the amounts billed by the experts in question. Plaintiff filed an objection to the Motion to Compel on June 16, 2005.

Plaintiff conducted the depositions of the experts in question, Peter Judd and Gary Walter, in February and March of 2005. Mr. Judd’s deposition has been completed; Mr. Walter’s deposition has not been completed. Both experts have submitted statements for services rendered to defense counsel, and Peerless seeks payment from plaintiff for $5,753.32 and $3,383.04 for Messrs. Judd and Walter, respectively. Both statements include substantial charges for time spent preparing for the depositions.

Plaintiff objects to the experts’ charges on two grounds: 1.) it maintains that it is not obligated to pay for time spent by the experts in preparing to be deposed and 2.) the fees claimed by the experts are unreasonable, in terms of the hourly rates charged and the number of hours billed.[1]

After reviewing the trial court decisions on both sides of the split of authority, I am persuaded that the better view is that a party deposing an adverse, expert witness should pay a reasonable charge for the expert’s time spent preparing to be deposed. This position is entirely consistent with the provisions of Practice Book § 13-4(3)(A), which requires “that the party seeking discovery pay the expert a reasonable fee for time spent responding to discovery under [Practice Book §§ 13-4(1) and (2)].” Brought v. Batson, 36 Conn. L. Rptr. 189 (2003) (Bellis, CT Page 10226 J.); Rolfe v. New Britain General Hospital, 47 Conn.Sup. 296, 305 (2001) (Shortall, J.). Plaintiff will therefore be required to pay a reasonable fee for deposition preparation to each of the experts in question. This will be discussed further below. Before setting forth my conclusions as to what payment each expert is entitled to receive from the plaintiff, I will set forth the standards by which the bills have been reviewed.

Both experts seek reimbursement for time spent traveling to and from their depositions. Unless an expert witness and adverse counsel happen to be located in extremely close proximity to one another, one participant or the other is going to spend time traveling to the site of the deposition. If it is decided that the expert will travel to the deposition, the time which he or she spends doing so is certainly “time spent responding to discovery” which should be paid for by the party taking the deposition.

The hourly rate to be paid for deposition-related preparation and travel time is also of some concern. In this case, both experts have billed all of their submitted time — for preparation, travel, and deposition — at the same hourly rate. Some of the trial court decisions which address this issue distinguish between such activities and permit experts to charge one rate for travel and preparation and another, higher rate for time actually spent in deposition. See, e.g., Gionfriddo v. Hartford Hospital Real Estate, 22 Conn. L. Rptr. 648 (1998) (Rittenband, J.) Others allow the same hourly rate for preparation time and deposition time. See, e.g. Brought v. Batson, supra. I find that the better view is that experts should charge less for time spent preparing for and traveling to and from depositions than they charge for time spent being deposed. Being a deponent is considerably more challenging than driving one’s car or reviewing one’s file, and an expert should be able to charge more for time spent in deposition than for activities which closely resemble the ordinary course of business, for most experts most of the time.

As Judge Bellis has observed, the reasonableness of all expert’s fee for a § 13-4 deposition must be addressed on a case by case basis. Brought v. Batson, supra. The invoices submitted by Messrs. Judd and Walter, while not as unreasonable as plaintiff claims, both seek reimbursement for excessive preparation time and, in some instances, payment for work that appears not to be deposition-related. CT Page 10227

Mr. Judd has submitted a bill for $5,753.92, claiming that he spent 36.6 “Expert Witness Hours” on activities related to his deposition. He seeks $154.00 per hour for his services rendered. Mr. Judd billed the defendant for his prior work on the case at $103.00 per hour. His “Claim File Activity Memorandum,” which itemizes the services performed, is patently unreasonable. It is highly unlikely that Mr. Judd spent time, in 2003 and 2004, preparing for a deposition which did not start until February of 2005. I have therefore disregarded his charges for time spent on the case before January 28, 2005, the date on which he was advised that plaintiff was going to depose him.

Mr. Judd claims he spent 8.1 hours in deposition on February 15, 2005 and 6.1 hours in deposition on March 18, 2005. This is at odds with the start and stop times set forth in the deposition transcript excerpts submitted by plaintiff, which show that the February 15 deposition session lasted approximately 5.2 hours and the March 18 session approximately 4.0 hours. Since the invoice does not include entries for travel time, and Mr. Judd works in Framingham and lives in Longmeadow, Massachusetts, the remaining time reasonably resembles his travel time.

Mr. Judd is entitled to compensation at the claimed rate of $154.00 for 9.2 hours of time spent in deposition ($1,416.80) and 5.0 hours of travel time for the two dates at $103.00 per hour ($515.00). Since January 28, 2005, he has billed an additional 15.2 hours for deposition preparation. This is manifestly excessive. I find that Mr. Judd is entitled to compensation for 9.2 hours of preparation time at $103.00 per hour ($947.60). There is no provision in § 13-4 for payments for mileage so this charge is disallowed.

Plaintiff is ordered to pay Mr. Judd the total sum of $2,879.40.

Mr. Walter has submitted a bill for 17 hours of work associated with his deposition, which has not yet been completed. Of these 17 hours, 6.25 were spent either in deposition (4.25) or traveling to and from the deposition. He is seeking $195.00 per hour for his time; his work on behalf of the defendant was billed at $80.00 per hour. While I believe that deposition time should be billed at a higher rate than other work, I do not believe Mr. Walter is justified in charging almost 2.5 times as much for time spent in deposition as he does for his other services. His claim CT Page 10228 for 11.75 hours of preparation time is also unreasonable.

The plaintiff is ordered to pay Mr. Walter the total sum of $1,170, consisting of 4.25 hours spent in deposition at an hourly rate of $120.00[2] ($510.00), two hours of travel time at $80.00 per hour ($160.00) and 6.25 hours of preparation time at $80.00 per hour ($500.00).

Miller, J.

[1] Plaintiff also makes reference to an alleged “reciprocal arrangement” with defense counsel whereby the parties would not pay for the time spent preparing for deposition by the adverse parties’ experts. Plaintiff has not furnished the Court with enough information to allow it to consider this issue in reaching a decision on this matter.
[2] This is the approximate differential between Mr. Judd’s rates for deposition time ($154.00) and other time spent working on the file ($103.00).

CT Page 10229