In a rare trial court published opinion, a New Jersey Superior Court in Atlantic County recently opined on a case that looked at how much should a party pay to depose their adversary’s expert. The case is Alice Jusino v. William LaPenta (ATL-L-7213-12). The underlying lawsuit involved a motor vehicle accident and the permanent physical injuries claimed by the plaintiff.
In a case such as this involving a physical injury, a physician as an expert is required to testify as to their “expert opinion” of the severity and permanency of the injuries, possible causes (tying the injury to the accident to create proximate cause), etc. Conversely for the defendants, they may also have an opposing expert (physician) examine the plaintiff and his/her medical records to perhaps almost surely come to a different conclusion. There may also be other experts needed to talk about economic (job) losses. Each party can choose their own expert, so long as that expert is considered qualified by the court.
Depositions are used to “lock in” a witness’ testimony so that there are no surprises at trial. Depositions are usually taken at one of the attorney’s offices, done under oath and recorded in some fashion (video, audio or court reporter/stenographer). The transcripts of a deposition can be used at trial. The cost of the deposition is generally paid for by the requesting party, although everyone pays for their own attorneys.
Experts are paid for their time. In many cases, quite handsomely.
In Justino, the defendant objected to the fees demanded by plaintiff’s physician: $1000 per hour with a $3000 minimum plus $500 for preparation costs and “excessive medical records and excessive time requirement fees may apply.” Excessive was not defined. Defendant asserted that the going rate for taking the deposition of an expert should be between $300 and $400 per hour. The court was asked to decide.
The court determined that the plaintiff had the burden of demonstrating that her expert was charging a reasonable amount. The court further determined that the plaintiff’s physician’s fees were not reasonable and assigned a $750 per hour rate (rounded up for any portion of an hour). The court equated $750 per hour to the rate the doctor would earn as a physician. Whether you agree with the court’s logic or not, that’s what the court ruled.
The takeaway: experts are an expensive component of litigation. Trials with experts often swing on which expert the jury likes the best or believes the most — dueling experts. The parties pay experts to analyze and prepare reports, be deposed (and prepare for the deposition), testify at trial (and prepare for testifying) and wait to be called to testify at trial. Start adding up these hours at the above rates. And this usually applies to both sides. Most experts will not engage in a case for less than $5000, usually paid up front.
How can you avoid this? Resolve your case through mediation. Experts are not required to settle a case, only to testify to “prove” or “disprove” a case. I’ve had clients use a neutral expert, one jointly hired by both sides to give a non-binding opinion that cannot be used for trial purposes, to resolve cases. Spending money on experts also makes the case harder to settle and less than 1.3% of filed cases in Law Division last year were settled by a trial. Early mediation can help all parties save money and resolve cases faster.
If you want to learn more about how mediation can help you resolve litigation or even pre-litigation disputes, please contact me to discuss.