The Rising Cost of Discovery from Expert Witnesses: Problems and Solutions
Expert witnesses have long been an integral part of litigation, and the topics upon which they are called to testify are numerous and varied. Illustrative is a recent monthly issue of Florida Jury Verdict Report, 20 FJVR 7, which lists over 200 experts. Our rules of civil procedure and evidence encourage the use of experts, as well as provide for their entitlement to reasonable compensation.1 With more and more experts or “professionals” being involved in the litigation process, the necessity for discovery directed to these witnesses has increased considerably. As stated in a recent medical/legal journal, “[P]ayment for expert witnesses services, in general, is a somewhat taboo subject,. . . almost nothing has been written about billing practices for these types of services. . . at this time, there is no generally agreed upon set of criteria for what constitutes inefficient, unfair or excessive billing.”2
This article will discuss some of the problems practitioners encounter in discovering opinions from experts and make suggestions on how such difficulties may be minimized. Some of the hurdles in calling an expert to trial not specifically “retained” by you or your client will also be examined. The need is apparent for uniform standards to guide litigants and experts as to the cost of, and payment for, discovery, which should result in a much more efficient system.3
The Dilemma
The following are only some of the situations the author has encountered with opposing experts in the months prior to the writing of this article:
1) A deposition of the plaintiff’s treating physician was scheduled at his convenience. The doctor advised that he charged $600 per hour and a check was delivered for this amount at the time of deposition. The deposition took exactly one hour; however, the doctor later billed an additional $800 for “preparation.” The doctor retained an attorney, who filed a “motion for additional fees.” The trial judge refused to award the additional compensation based on the agreement between the physician and my office.
2) The expert demands payment of $2,000 prior to his discovery deposition being taken. A motion to compel and to assess a reasonable fee for the deposition was filed.
3) An expert charges $500 more if the deposition is videotaped—no additional preparation needed—with the reason given as: “Turn on the camera and pay me more money!”
4) A treating neurosurgeon was subpoenaed to trial by plaintiff’s attorney. He testifies on cross as to his charge for coming to court, “I told him (plaintiff’s attorney) if I have to come here to testify (doctor was given a set time to testify; courthouse was 10 minutes from his office) he’s going to pay me $5,000 per hour.” His testimony took two and one-half hours.
5) Treating physician subpoenaed to trial, with the doctor’s fee (“demand”) not agreed to by counsel. The testimony went something like this. Q: Doctor, did the patient give you a history? A: I don’t recall. Q: Do your records refresh your recollection? [doctor glaring at attorney] A: No. Q: What did the patient [attorney trying to establish a preexisting history] tell you as to her prior problems [which were clearly documented in his chart]? A: I don’t know.
The last example was obviously the expert’s retaliation for the attorney not agreeing to pay his “set” fee. Discretion being the better part of valor, perhaps an agreement with the doctor would have at least motivated the witness to read his records! Other problems with obtaining testimony from experts include refusal to testify without payment in advance of deposition or trial; minimum charges; refusal to give a date and time for a deposition except before or after business hours; and refusal to be deposed except for certain days of the week.
The Florida Statutes and the Rules of Civil Procedure provide little guidance in resolving the problems that frequently occur in obtaining discovery from an opposing expert or paying experts not retained by you to testify at trial. F.S. §92.231(2) provides:
Any expert or skill witness who has testified in any cause shall be allowed a witness fee, including the cost of any exhibits used by such witness in the amount of $10 per hour, or such amount as the trial judge may deem reasonable, and the cost for same shall be taxed as costs.
Rule 1.390(c) of the Florida Rules of Civil Procedure, in discussing discovery of experts, states:
An expert or skill witness whose deposition is taken shall be allowed a witness fee in such reasonable amount as the court may determine. The court shall also determine a reasonable time within which payment must be made, if the deponent and the party cannot agree. All parties and the deponent shall be served with a notice of hearing to determine the fee. Any reasonable fee paid to an expert or skill witness may be taxed as costs.
Rule 1.340(c) (emphasis supplied).
The statutory rate of $10 to be paid to an expert at trial implies that the expert is under obligation to testify at trial, and the amount of the fee is to be determined post verdict. On the other hand, Rule 1.390(c) allows for a “reasonable” fee to be set prior to or after a deposition. In practice, it is difficult to have a fee issue determined prior to a deposition. This is mainly due to time constraints with hearing dates for a dispute that usually does not arise until just before (or after) the deposition.
The current status of the law, as recited by the Second District in Lyle v. Lyle, 167 So. 2d 256, 257 (Fla. 2d DCA 1964), is that each situation is decided on its own merits, and that there is no formula of how an expert should be compensated:
In all litigation involving professional fees, p
roof is required of the nature of, and the necessity for, the services rendered and the reasonableness of the charge made therefor. In this respect, the legal profession stands on the same plane of other professions. As between a lawyer and his client, a matter of fees is one of contract between the two, but the fee to be allowed by the court is something else and must be proved as any other fact, and determined and allowed by the court in its judicial discretion. The reasonableness of attorneys’ fees is not the subject of judicial notice, neither should it be left to local custom, which is conjecture guesswork. Each award must be made on its own merits and should be justified by the circumstances in each particular case.
For costs sought to be “taxed” in cases actually tried, the amounts paid to experts must be reasonable. Thus, the attorney paying for the discovery deposition has to encounter the reasonableness question twice: once with the expert for being deposed and again with the court, unless a hearing took place regarding the deposition. The “burden” is on the expert to show the charges are reasonable.4 Obviously, payment of the expert’s charges does not mean the court will find the amount agreed upon to be “reasonable.”
Expert fees for testifying at trial are subject to the state uniform guidelines for taxation of costs in civil actions, unlike deposition testimony which “may” be taxed pursuant to Rule 1.390, regardless of whether it was used at trial.5 In some cases an expert’s fee for deposition testimony has been taxed. For example, the First District Court of Appeal upheld, pursuant to Rule 1.390(c), a trial court’s taxing as costs an expert witness fee for an expert whose deposition was taken but whose testimony was not offered at trial.6
The party retaining an expert is responsible to pay contractual charges.7 However, an expert such as a treating physician cannot refuse to testify when the attorney refuses to pre-pay or agree to the expert’s charges. Section 92.231(2) requires only a $10 witness fee and a reasonable fee, if unable to be agreed upon, to be determined post verdict.8
Finally, as part of the recent tort reform legislation (effective October 1, 1999), in order to tax the costs of expert fees against the opposing party, you must provide a report summarizing the opinions no later than five days prior to the deposition of the expert or at least 20 days prior to discovery cutoff, whichever is sooner.9
Suggestions to
Avoid Disputes
Certainly the attorney requesting discovery from an expert retained by the opposing party or a treating physician should make a diligent effort to reach an agreement with the witness on the amount of the fee when scheduling the deposition, or shortly thereafter. Confirming the arrangement in writing is highly advisable. Personal conversation between the expert and the attorney initiating discovery regarding any dispute over the amount of the fee or date and time of the deposition could prove helpful.10
If the opposing side has retained the expert whom you seek to depose, counsel may be able to intercede and help resolve any dispute as to the amount charged or the timing of the discovery. In the matter of a treating physician, the plaintiff’s counsel may have little influence in the matter. If the physician declines to go forward with a deposition, the deposing counsel should file a motion to compel testimony, combined with a request to determine a reasonable fee, and should serve the motion and notice of hearing on the physician and opposing counsel. The expert may then be motivated to resolve the issue without a court appearance. Of course, the opposite could occur and the expert may be more difficult to deal with and could retain personal counsel to argue the matter in court.
Experts who are known to charge exorbitant fees or who charge more for video depositions should have to justify charges before the trial court. Some practitioners, on the other hand, feel that expert fees should be paid regardless of the amount, as fighting with the expert (they believe) can only lead to unfavorable results either in settlement or trial.
One of my colleagues has proposed during numerous cases which we have litigated together that each party bear the cost of deposing his or her own retained expert. The expert is paid without any dispute, and more than likely at a more favorable rate. Of course, this does not answer problems involving treating physicians or other experts over whom neither party has control.
Guidelines Are Needed
While setting standard charges for expert discovery may not solve all problems, it would certainly simplify the litigation process. For example, a prospective rule could specify that in order for discovery to go forward, the party seeking discovery shall be required to file a motion to determine a reasonable fee within a set time after the discovery is obtained. This should preclude the expert from setting unreasonable conditions on the deposition and delaying the progression of the case. Additionally, a cap could be placed on the hourly rate charged, or a maximum charge could be set for a deposition, and specific guidelines would enumerate the types of things an expert could charge for, i.e., preparation, travel, incidental costs, etc.
Undoubtedly, such provisions would be controversial because of differences, perceived or real, between qualifications of experts, e.g., a chiropractor paid the same as a nuclear physicist. Further, an overly restrictive rule could end up discouraging experts from becoming involved in litigation.
With the present system, many clients refuse to authorize the deposition of opposing experts, thus making it extremely difficult for their interests to be properly represented at trial. Similarly, in a contingency situation where plaintiff’s counsel may advance costs, charges for expert discovery could seriously impact the recommendations by the attorney as to whether the case should be prosecuted. Guidelines which would give litigants and experts guidance on how these matters are to be handled should therefore be welcomed. q
1 Fla. Stat. §§90.702–704; Fla. R. Civ. P. 1.280 and 1.390.
2 26 J. Am. Acad. Psychiatry and the Law No. 1 (1998).
3 See Journal of Legal Med.
4 See American Indemnity Company v. Coneau, 419 So. 2d 670 (Fla. 5th D.C.A. 1982); Lafferty v. Lafferty, 413 So. 2d 17 (Fla. 2d D.C.A. 1982).
5 Hyster Company v. Stephens, 560 So. 2d 1334 (Fla. 1st D.C.A. 1990); Eppler v. Tarmac America, Inc., 695 So. 2d 775 (Fla. 1st D.C.A. 1997).
6 See Hyster, 560 So. 2d 1334; Eppler, 695 So. 2d 775.
7 See Lyle, 167 So. 2d 256.
8 See Eppler, 695 So. 2d 775.
9 See Fla. Stat. §57.071(2) (1999).
10 Practitioners should be aware that it is inappropriate to discuss with a treating physician the care and treatment of the patient, unless at trial or in deposition. See Fla. Stat. §455.667(5).
Curtright C. Truitt is a board certified civil trial attorney in Ft. Myers, concentrating his practice in representation of insurers and their policyholders. He received his bachelor’s degree from Baylor University and graduated from Stetson University College of Law in 1983. Mr. Truitt cofounded Tew & Truitt, P.A., in 1984 and in 1995 formed Curtright C. Truitt, P.A.
This column is submitted on behalf of the Trial Lawyers Section, Michael G. Tanner, chair, and D. Keith Wickenden, editor.
