The United States District Court, D. Nevada. In the case of SCOTT L. WALKER, JR., Plaintiff, v. SPIKE’S TACTICAL, LLC, et. al., Defendants. Case No. 2:13-cv-01923-RFB-PAL dealt with the issue of how much of a fee is reasonable for a neurologist expert witness. The case arose out of an injury during the use of a flair launcher manufactured by Defendant Spike’s Tactical and sold to him by Defendant Badass Tactical.
The expert requested a fee of $1,500 per hour for a telephone deposition and $2,500 per hour for an in-person deposition.
The court found that $1,500 per hour was reasonable for a telephone deposition and concluded:
The parties have provided very little information to the court to enable it to determine the prevailing rates of other comparably respected available experts. Defendants state that a well-recognized spinal surgeon in Las Vegas charges $1,500/hr. and Defendants cite a single example of another Las Vegas neurologist who charges $2,100/hr. for deposition testimony. In the court’s experience, there are a few cases which determine the reasonableness of an expert’s fee because the cost of litigating the matter exceeds the difference between what the expert wants and the discovering party deems reasonable. What seems clear is that many, if not most, medical experts demand substantially higher fees for testifying than they do for seeing patients, providing independent medical examinations, performing records reviews, and preparing reports outlining their opinions. Although he charges considerably less for consults and records review and report preparation, Dr. Fazzini’s fee schedule indicates that he will charge Plaintiff $17,500/day for trial testimony, and $10,000/half day plus travel expenses if he is required to travel from New York to Las Vegas for trial, that is, if his trial testimony occurs when he is not otherwise in Las Vegas on a regularly scheduled trip. If he is in Las Vegas on a regularly scheduled trip, he will charge $15,000/day and $7,500/half day for testifying.
In this case, Dr. Fazzini’s fee schedule indicates he charges $1,500 to perform an independent medical evaluation consultation, and charged Plaintiff $600/hr. with a $4,000 retainer to include six hours or record review, literature research and report generation fee. He charges $2,500/hr. for deposition testimony unless it is by telephone in which case he charges $1,500/hr. His fee schedule for an in-person deposition is more than four times what he charges the Plaintiff for a records review and report preparation. The report indicates that he reviewed photos and non-voluminous medical records for treatment and services provided to Plaintiff by other providers between February 20, 2012, and May 9, 2012. He conducted a single neurological examination of the Plaintiff on February 7, 2014, and conducted EMG/NCV testing of the patient’s arms. Counsel for Plaintiff did not advise the court what Dr. Fazzini charged for his consult or testing.
No explanation was provided why Dr. Fazzini would charge $1,500/hr. for a telephone deposition, but $2,500/hr. for an in-person deposition at his own office.
Dr. Fazzini is a board-certified neurologist and a fellow of the American College of Neuropsychiatrists. He is a Clinical Associate Professor of Neurology at New York University/Langon Medical Center, an Adjunct Associate Professor of Neurology at Touro University of Osteopathic Medicine in Mare Island, California, Clinical Associate Professor of Medicine/Neurology at NYIT College of Osteopathic Medicine in Old Westbury, New York, and a director of the American Parkinson’s Disease Center. He has impressive credentials and the education and training required to provide expert opinions in this case.
Neither party has provided the court with evidence of the prevailing rates of other comparable, respected, available experts in this area. Dr. Fazzini charged the Plaintiff $600/hr. for his expert services, but will charge substantially more for testifying. Plaintiff’s counsel represents that Dr. Fazzini has been traditionally chargeing the fees reflected on his fee schedule since 2008.
Balancing the competing interests, the court fixes Dr. Fazzini’s fee for testifying at deposition at $1,500/hr. Dr. Fazzini is willing to testify for $1,500/hr. if the deposition occurs telephonically. The deposition will be taken in his office on a date and time convenient to him while he is in Las Vegas. Counsel for Defendants has agreed the deposition will not take any longer than an hour, and the court will hold defense counsel to his word. Plaintiff’s counsel conceded that the medical records Dr. Fazzini will be required to review to prepare are not voluminous, and his own services in this case consist of a single consult and nerve conduction studies on Plaintiff’s arms. His opinions are straightforward and non-complex.
For the reasons stated,
IT IS ORDERED that Defendants’ Motion for Order Fixing Expert Witness Fee (Dkt. #42) is GRANTED in part and DENIED in part. Defendants’ request to fix an expert fee at $600/hr. is denied. The court fixes the fee for Dr. Fazzini’s deposition at $1,500/hr. and will limit the deposition to one hour in duration exclusive of breaks.