Virginia Lawyers Weekly VA Lawyers Weekly
Where a court rule requires a litigant to pay “‘a reasonable fee for time spent and expenses incurred[,]’” when deposing an opposing expert witness, this includes the expert’s “reasonable fees incurred during the deposition itself, as well as the reasonable fees incurred for travel and reasonable fees for the expert’s preparation for the deposition.”
Overview
A leaking toilet caused a mold infestation that rendered plaintiff Saphilom’s property “uninhabitable” and destroyed personal property. She filed a claim with her insurer, USSA. USSA denied the claim, citing a mold exclusion in the insurance policy. Saphilom sued for breach of contract.
Saphilom designated several experts, including Elizondo and McKoy. USSA noticed their depositions.
“Elizondo spent two hours preparing for the deposition, and five hours at the deposition, including travel time to and from the deposition, at a billable rate of $300 per hour, for a total cost of $2,100.
“McKoy spent eight hours preparing for the deposition, at a rate of $195 per hour, and spent four hours at the deposition at a rate of $295 per hour, for a total cost of $2,740.
“Following USAA’s deposition of McKoy, Saphilom withdrew McKoy as an expert.
Saphilom seeks “to shift these fees to USAA under Virginia Supreme Court Rule 4:1(b)(4)(C). USSA argues that there is no Virginia case law requiring a defendant to pay for a plaintiff’s expert witnesses’ deposition preparation or travel time.
“Even if there was such authority, it argues that deposition preparation time is a benefit to the party offering the expert, not the opposing side. Therefore, USAA believes Saphilom should pay the fees to prepare her own witness. USAA also argues that a fee shift to it would be unfair because Saphilom waited until after the experts prepared for the depositions to request that USAA pay those costs.
“Finally, USAA objects to paying any fees for McKoy’s deposition considering Saphilom withdrew her as an expert after the deposition.”
Discussion
“‘A party may depose any person who has been identified as an expert whose opinion may be presented at trial, subject to the provisions of subdivision (b)(4)(C) of this Rule concerning fees and expenses.’ VA. SUP. CT. R. 4:1(b)(4)(A)(ii).
“‘Unless manifest injustice would result, (i) the court must require that the party seeking discovery pay the expert a reasonable fee for time spent and expenses incurred in responding to discovery under subdivisions (b)(4)(A)(ii), (b)(4)(A)(iii), and (b)(4)(B) of this Rule.’ …
“Plainly, this Rule means a party who deposes an expert witness must pay the expert ‘a reasonable fee’ and ‘expenses incurred’ for such a deposition absent a resulting ‘manifest injustice.’
“Both parties are correct that no Virginia court further explained this Rule, and the Court accepts USAA’s representation that as a matter of custom litigants only pay for the time the expert spends in the deposition.
“However, the Court cannot ignore the plain language of the Rule that is not as limiting as USAA wishes.”
The Virginia rule is almost identical to the federal rule concerning payment of expert witness fees. “Various federal courts have recognized a variety of helpful factors to determine what would be a reasonable fee for an expert under the federal rule.
“These include ‘(1) the witness’s area of expertise; (2) the education and training required to provide the expert insight that is sought; (3) the prevailing rates of other comparably respected available experts; (4) the nature, quality, and complexity of the discovery responses provided; (5) the fee actually charged to the party who retained the expert; (6) fees traditionally charged by the expert on related matters; and (7) any other factor likely to assist the court in balancing the interest implicated by Rule 26.’ Fisher-Price, Inc. v. Safety 1st, Inc., 217 F.R.D. 329, 333 (D. Del. 2003)”
The federal and Virginia rules both “encourage[] experts to prepare for their depositions. This results in experts who can confidently answer those questions at a deposition that will help the party taking the deposition prepare for trial.
“The Court rejects USAA’s position that deposition preparation only benefits Saphilom. Without adequate deposition preparation the witness will likely provide less complete answers to counsel’s questions, diminishing the value of the deposition.
“Allowing the expert to charge fees for their preparation time increases the likelihood that the answers at the deposition will be correct and complete, reducing the need of the expert to correct themselves later, supplement their answers, or interrupt the deposition itself to look up information to fully answer an inquiry by the deposing party.
“This provision also rightfully, when appropriate, places the burden of payment on the party requesting the deposition. From a logical standpoint, this makes sense — the party taking the deposition is the party who wants the expert’s time, and therefore causes the expert to spend time preparing, traveling, and attending the deposition.
“The party who designated the expert gains little from the deposition of their own witness by the opposing party — they should not be responsible for those fees that result from the expert being deposed.
Reasonable reimbursement
“As to Saphilom’s expert Carlos Elizondo, this expert spent two hours preparing for the deposition at a rate of $300 per hour, with an additional five hours traveling to and attending the deposition. The total fees are $2,100. The Court considered his expertise as a mold expert, the short preparation time, and the ratio of his preparation to the actual deposition time.
“The Court inspected his invoices and finds these fees reasonable under the Fisher-Price factors, based on the information it has. Due to the nature of the case, to fully prepare for the deposition and to fully answer the questions asked, this is a reasonable amount of preparation. The travel time was negligible.”
“As to Saphilom’s expert Linda McKoy, her total fees preparing for and attending the deposition was $2,740. However, following the deposition of this expert by USAA, Saphilom withdrew McKoy as an expert in the case. The Court finds that it would result in manifest injustice to require USAA to pay the fees the expert incurred preparing for a deposition of a witness recalled by Saphilom.”
Saphilom v. USAA General Indemnity Company, Case No. CL-2021-992, Jan. 11, 2023. Fairfax County Circuit Court (Oblon). Bret Giaimo for plaintiff. Brian Muse, Christopher Jones for defendant. VLW 023-8-002, 8 pp.
