Issue: Feb 20. 2023

In what some could see as a shock to their litigation budgets, a Virginia circuit court judge has ruled that a litigant who chooses to depose an opponent’s expert witness must also pay for the expert’s reasonable preparation and travel time.

Judge David A. Oblon of the Fairfax Circuit Court noted that, despite the frequency of expert witness depositions, there is no Virginia authority that explains Rule 4:1(b)(4)(C)’s boundaries.

“The court holds a litigant who chooses to depose an opposing expert witness must pay a reasonable fee for the expert’s time spent and expenses incurred, absent a resulting manifest injustice,” he wrote. “This fee may include the time spent in the deposition, reasonable time spent traveling to the deposition, and reasonable time preparing for the deposition.”

The opinion is Saphilom v. USAA General Indemnity Company (VLW 023-8-002).

Expert fees

Keolattana Tootoo Saphilom sued USAA General Indemnity Company for breach of contract after the insurer refused to honor a claim for mold damage to her property. Saphilom designated several experts, including Carlos Elizondo and Linda McKoy.

USSA noticed depositions and deposed Elizondo and McKoy in December 2022. In January 2023, the parties argued several pretrial motions, including Saphilom’s motion for fees for expert witness depositions under Virginia Supreme Court Rule 4:1(b)(4)(C).

Elizondo billed two hours preparing 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, meanwhile, billed eight hours preparing at $195 per hour, and four hours at the deposition at $295 per hour, for a total cost of $2,740. Following McKoy’s deposition, Saphilom withdrew her as an expert.

USAA said there aren’t any Virginia cases requiring a defendant to pay for a plaintiff’s expert witnesses’ deposition preparation or travel time. Even if there was, the insurer added, deposition preparation is a benefit to the party offering the expert, not the opposing side.

USAA also said a fee shift would be unfair since Saphilom waited until after the experts prepared for the depositions to request that USAA pay those costs, and she withdrew McKoy’s deposition.

Logical standpoint

“Plainly, [Rule 4:1(b)(4)(C)] 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,’” Oblon wrote. “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.”

But Oblon offered a caveat — specifically, the court can’t ignore that the rule’s plain language isn’t as limiting as the insurer would like.

The judge said Virginia’s rule is almost identical to the federal rule concerning payment of expert witness fees.

“While no Virginia court has yet interpreted Va. Sup. Ct. R. 4:1(b)(4)(C), federal courts have explained FRCP 26(b)(4)(E),” the judge added.

Looking to Fleming v. US, a 2000 decision from the Western District of Virginia, he noted that “‘[t]he goal of Rule 26(b)(4)(C) is to calibrate expert fees, so that plaintiffs will not be unduly burdened in their efforts to hire quality experts, while defendants will not be hampered by unreasonably high fees which prevent feasible discovery. Ultimately, it is in the court’s discretion to set an amount that it deems reasonable.’”

The Fleming court found that it is “well established that time spent by an expert preparing for his or her deposition by opposing counsel is part of a reasonable fee.”

Although the court in Fleming didn’t shift the expert’s travel fees to the defendant, it was only because the deposition was taken at the plaintiff’s offices. The court said it would have been logical for defense counsel to pay if the expert had to travel to their offices.

“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,” Oblon said, including areas of expertise, education and training, prevailing expert rates, complexity, the fee actually charged, traditional charges and any other factors likely to assist the court with a balancing of interests.

The judge said federal courts have determined whether manifest injustice exists by weighing the possible hardships imposed on respective parties and balancing the need for doing justice on the merits between them against the need for maintaining orderly and efficient procedural arrangements.

Both the federal and Virginia rules encourage experts to prepare for their depositions, Oblon explained, which results in experts “who can confidently answer those questions at a deposition that will help the party taking the deposition prepare for trial.”

The judge rejected USAA’s position that deposition preparation only benefited Saphilom.

“Without adequate deposition preparation the witness will likely provide less complete answers to counsel’s questions, diminishing the value of the deposition,” the judge explained. “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.”

He continued that Virginia’s rule “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.”

Oblon then said the party who designated the expert gains little from the deposition of their own witness by the opposing party. Thus, USAA should be responsible for the fees that result from Saphilom’s expert being deposed.

In the end, Elizondo’s $2,100 fee was reasonable, considering his expertise as a mold expert, the short preparation time, the nature of the case, negligible travel time and the ratio of his preparation to the actual deposition time.

However, Oblon found that it would result in manifest injustice to require USAA to pay the fees McKoy incurred preparing for a deposition because Saphilom withdrew her shortly thereafter.

Chilling effect?

Paul T. Walkinshaw, a shareholder at Wharton Levin in Fairfax, has litigated numerous federal and state cases involving complex, expert-driven facts.

“In my experience, the rule regarding payment of expert deposition fees has not been interpreted in this manner by most attorneys on either side,” he told Virginia Lawyers Weekly. “This ruling has the potential to drastically change expert witness discovery.”

He warned of a chilling effect on requesting expert depositions.

“You’d be taking an enormous financial risk to request an expert deposition because you cannot know in advance how much time the expert will spend preparing for it,” he noted.

Even the statutory guardrail against unreasonable fees was cold comfort, he cautioned.

“In practice an unreasonable fee would have to be litigated, which costs time and money, too,” he said.