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Delaware law regarding determination of expert fees

January 1, 2010
Reid v. Johnston, C.A. No. 08C-01-025 (JRS), The Hon. Joseph R. Slights, III

The case arose out of a rear-end automobile collision which allegedly caused personal injury to the plaintiff. The defendant engaged an expert to examine the plaintiff and to offer opinions at trial regarding the extent to which the automobile accident proximately caused the plaintiff's injuries. Plaintiff's counsel noticed the expert's deposition. Upon receipt of the notice, the expert issued a fee schedule in which he set forth his fee for the deposition and, particularly relevant, his fee to prepare for the deposition. The plaintiff filed a motion in which she sought an order from the court (1) setting the maximum fee the expert may charge to sit for his deposition; and (2) relieving the plaintiff of any obligation to compensate the expert for the time he might spend preparing for his deposition. The court rendered its decision regarding the extent to which the expert may pass his deposition preparation fee on to the plaintiff. This was an issue of first impression. The court determined that the plaintiff, as the party noticing the expert deposition, should be required to reimburse the expert for the reasonable time spent reviewing materials in preparation for the deposition. In preparing for his discovery deposition (noticed by another party), the expert was "responding to discovery" and should be reimbursed a "reasonable fee" for that time by "the party seeking the discovery." The time the expert spent conferring and preparing with retaining counsel regarding deposition testimony, however, was not reimbursable, as that time was spent not to refresh the expert's recollection of the facts and bases for his opinions (for which counsel's involvement is not required), but rather to address tactical and trial preparation issues, for which the expert was not entitled to reimbursement from the plaintiff. The court next decided how best to ascertain a "reasonable fee" for preparation time under Rule 26(b)(4)(C). Absent extraordinary circumstances, the court adopted a rule that the expert shall be reimbursed by the noticing party for time spent actually preparing for a deposition at the expert's hourly rate in an amount up to and including the amount of time spent in the deposition itself. To summarize, the court held that the plaintiff must reimburse the expert for his actual deposition preparation time at his deposition rate up to the time taken to conduct the deposition itself. Accordingly, the plaintiff's Motion to Determine Expert Fees was denied. If called upon to review the expert's reimbursement request, the court noted that it would be mindful that preparation for deposition involved refreshing the expert's recollection of facts already reviewed and opinions already expressed. The deposition preparation session is not the time to conduct new research or to review new facts, at least not to the extent that the expert will seek reimbursement for that time from the opposing party. Nor may the expert seek reimbursement for the time spent meeting with the attorney(s) who retained him, even if such meetings ostensibly are meant to help prepare the expert for deposition. Such meetings served the tactical interests of the party who engaged the expert and are more accurately characterized as trial preparation expenses. Finally, the court noted that any request for reimbursement for an expert's deposition preparation time should be in writing and should provide sufficient detail to allow opposing counsel to see what she is paying for.

Case Law Alert - 1st Qtr 2010

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