No Deposit, No Deposition: Pre-paying for a Block of Time
posted on April 25th, 2009 in Experts, Fees by clintI have noticed a disturbing trend in medical malpractice cases. You get the opposing party’s Rule 26 report that discloses the identity and opinions of the opposing party’s experts. Sometimes the opposing party, usually the physician or hospital, discloses numerous experts who have the same opinion. You decide who to depose and ask the opposing party for dates that the experts can be available for discovery depositions. The opposing party replies with dates and information about the compensation rates for the experts. In the letter, the opponent states:
Dr. Roberts, an economist, requires advance payment of a 4-hour block of time, for a total of $1,340.00, with the check to be present in his office at least 2 weeks prior to the deposition.
Despite your shock and dismay, you reply to the opposing party:
I do not do that. Likewise, I do not demand the same of you for my experts because I know you will pay the fee. Experts are entitled to reasonable payment, not pre-payment. You can report to Dr. Roberts that I am an officer of the court, and I have never “stiffed” an expert. If that won’t suffice, then we need to take this up with the Court. I hope you understand I’m not trying to be difficult. It is merely a matter of principle with me. The rates for expert testimony are high enough already without adding this additional burden to my client.
In response, the opposing party states:
Pre-payment clauses are no uncommon in these cases. I cannot guarantee that Dr. Roberts will appear at the deposition if you fail to pre-pay for his deposition.
So, the expert requires you to pre-pay a deposit for a block of time as a prerequisite to making himself available for deposition. The message is clear: if you don’t make the deposit for the expert’s block of time, then you won’t get to depose him. Is this right or is this extortion? Do you have to pre-pay in order to depose the expert? The answer in my opinion is “No.”
TENN. R. CIV. P. 26.02(4)(C) provides in pertinent part that:
Unless manifest injustice would result, (i) the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under subdivisions (4)(A)(ii) and (4)(B) of this rule…. (emphasis added).
The Rule only uses the past tense. In other words, payment is due for “time spent,” not for time that “may be” or “will be” spent. There is no provision in the rule for pre-payment of fees, and there is no Tennessee case that allows such a demand.
This precise issue has not arisen in Tennessee law. However, the issue has arisen in a federal court. When the federal rule and the Tennessee rule are essentially identical, decisions under the federal rule may be considered in construing the Tennessee rule. Edwards v. Allen, 2005 WL 3190336 (Tenn.Ct.App.) (citing March v. Levine, 115 S.W.3d 892, 908 (Tenn.Ct.App.2003)). In Harris v. Costco Wholesale Corp., 226 F.R.D. 675 (S.D.Cal.2005) this issue of pre-payment for an expert deposition arose. Fifteen minutes into the deposition, plaintiff’s counsel demanded immediate payment for his expert’s time at the rate of $250.00 an hour. Defendants’ counsel indicated he did not have a check on him. Plaintiff’s counsel then terminated the deposition, in effect holding the discovery “hostage” to pre-payment. The Defendant then sought an order from the district court requiring the expert to make himself available to reconvene the deposition and sanctioning the Plaintiff’s counsel.
The district court held that there is no requirement in FED. R. CIV. P. 26 for an expert’s fees to be paid in advance of the deposition absent agreement to do so. Harris, 226 F.R.D. at 676-77. To the contrary, “[u]nlike ordinary witness fees, no rule requires that an opposing expert’s deposition fees be tendered to the witness in advance. Id at 676-77. In fact, Fisher-Price, Inc. v. Safety 1st, Inc., 217 F.R.D. 329, 331 (D.Del.2003) indicates that a motion for reimbursement of such fees can be made as late as post-trial. Id. This means that the expert may not even get paid until the conclusion of the case, not at the time of the deposition. There is no authority that allows the expert to get pre-paid before his discovery deposition. The expert cannot hold his availability for deposition “hostage” to pre-payment.
This issue has public policy ramifications as well. The cost of medical malpractice litigation is very expensive to all parties. The typical cost of prosecuting a medical malpractice action before trial exceeds $50,000. In some neurological cases, the cost exceeds $80,000. The expert’s insistence on pre-payment for a block of time constitutes a slippery-slope. If other experts insist in pre-payment for a preferred block of time, then parties will likely have to perhaps tens of thousands of dollars for discovery before the first deposition is taken. This is an extraordinary financial burden in an already expensive endeavor.
If other experts insist on pre-payment for a preferred block of time, then parties will likely overpay for discovery that is not needed. It promotes economic waste. It puts the discovering lawyer in the uncomfortable position of finding ways to fill the block of time preselected by the expert to justify the expense to the client. There is no need to turn a one-hour deposition into a two-hour deposition just because the lawyer was compelled to purchase a block of time. Experts are exponentially more expensive than parking meters. If other experts insist in pre-payment for a preferred block of time, then this practice will invade the province of the court. While an expert is allowed to charge a reasonable fee for responding to discovery, Rule 26.04(C) empowers the court, not the expert, with setting the fee and the terms. Most experts will readily acknowledge the power of the court to alter their policy for payment of fees. No expert may infringe upon that power. Your trial court should not allow it either.
Finally, if other experts insist in pre-payment for a preferred block of time, then this practice will hinder the discovering party’s constitutional right to Due Process. Economically disadvantaged parties may lack the financial power to pay for discovery due to the requirement of pre-payment for a preferred block of time. This will inevitably lead to deprivation of Due Process. An economically disadvantaged party cannot afford to vindicate his rights like other more affluent parties because the cost is too high up front. This is an injustice that ought to be avoided. Your opponent may point fingers at your expert who requests payment for a minimum 2-hour block of time. However, your expert does not likely expect payment until after the deposition is completed. Likewise, your expert does not make pre-payment a condition of his availability for deposition. The opposing party could object to this arrangement. Instead, he chooses to accept the expert’s terms. In any event, two wrongs do not make a right. It is time for trial courts to restore some financial sanity to this process before it spirals out of control.