Free Motion for Protective Order - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-CV-2401 RPM-MJW JASON C. FREDERICK, Plaintiff, KAISER PERMANENTE and RSKCO CLAIMS SERVICES, as subrogee for JASON C. FREDERICK, Plaintiff-Intervenor, v. PHILIPS MEDICAL SYSTEMS (CLEVELAND), INC. an Ohio corporation Defendant.

DEFENDANT PHILIPS MEDICAL SYSTEMS (CLEVELAND), INC.'S MOTION FOR PROTECTIVE ORDER TO LIMIT EXPERT FEES OF DR. ROSS WILKINS AND MOTION TO SET DEPOSITION DATE FOR DR. ROSS WILKINS AND REQUEST FOR A FORTHWITH DETERMINATION

Defendant Philips Medical Systems (Cleveland), Inc, ("Philips"), by and through its attorneys, Montgomery, Kolodny, Amatuzio & Dusbabek, L.L.P., submits Philips' Motion for Protective Order to Limit Fees of Dr. Ross Wilkins and Motion to Set Deposition Date as follows: CERTIFICATE OF COMPLIANCE WITH D.C.COLO.LCIVR 7.1 Undersigned counsel has conferred with counsel for the Plaintiff who opposes the relief requested herein.

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1.

Defendant Philips notified Plaintiff of its intent to take the deposition of

Plaintiff's expert, Dr. Ross Wilkins, an orthopedic surgeon, and was informed that Dr. Wilkins charges $1,000.00 per hour for a deposition. (Ex. A.) 2. Philips objected to Dr. Wilkins' fee on the basis that it is excessive and did not

represent a "reasonable fee" as required by Fed. R. Civ. P. 26 and requested that Plaintiff's counsel inquire of Dr. Wilkins regarding setting a reasonable fee for Dr. Wilkins' deposition testimony. (Ex. B.) 3. Defendant Philips offered Dr. Wilkins the "reasonable fee" of $400.00 per hour

(Ex. C); however, Dr. Wilkins would not agree to charge anything less than $1,000.00 per hour. (Ex. D.) 4. Plaintiff's counsel had provided a deposition date of August 22, 2005 for Dr.

Wilkins and undersigned counsel requested that Plaintiff hold that date of August 22, 2005 until the Court ruled on this Motion. (Ex. B.) Plaintiff's counsel, however, did not hold the August date and instead substituted the date of September 22, 2005 and explained that Dr. Wilkins would only hold this date for seven days unless paid in full. (Ex. D.) 5. Fed. R. Civ. P. 26(a)(2) disclosures are set for July 11, 2005 for the Plaintiff and

Plaintiff-Intervenor and August 8, 2005 for Defendant. Defendant needs to depose Dr. Wilkins far enough in advance of August 8, 2005, to enable its expert(s) to review Dr. Wilkins' testimony and prepare an appropriate report in response to the same prior to the August 8, 2005 deadline. 6. Defendant Philips previously designated Dr. Stephen Dinenberg as Defendant's

expert and provided Plaintiff with Dr. Dinenberg's reports, CV, and rate sheet. Dr. Dinenberg is

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also an orthopedic surgeon and charges $400.00 per hour for deposition testimony. (Ex. E, Dr. Dinenberg's rate sheet.) 7. Fed. R. Civ. Pro. 26(b)(4)(C) requires "that the parties seeking discovery pay the "What constitutes a `reasonable fee' for the purposes of Rule

expert a reasonable fee."

26(b)(4)(C) lies with the court's sound discretion." Edin, D.D.S. v. The Paul Revere Life Ins. Co., 188 F.R.D. 543, 545-46 (D. Ariz. 1999) (stating that Rule 26 mandates that an adverse expert will not be paid his heart's desire, but that he will be paid a reasonable fee).1 8. The Edin Court used the following seven factors used in U.S. Energy Corp. v.

Nukem, Inc., 163 F.R.D. 344 (D. Colo. 1995)2 to determine the reasonableness of an expert's fee in a situation directly on point: (1) (2) (3) (4) (5) (6) (7) The witness' area of expertise; The education and training required to provide expert insight which is sought; The prevailing rates of other comparatively respected available experts; The nature, quality and complexity of the discovery responses provided; The fee actually charged to the party who retained the expert; Fees traditionally charged by the expert on related matters; and Any other factor likely to assist the court in balancing the interests implicated by Rule 26.

Edin, 188 F.R.D. at 546 (citing to Nukem, 163 F.R.D. 344 (D. Colo. 1995). 9. In Edin, the defendant's expert witness Dr. Maric, an orthopedic surgeon,

attempted to charge plaintiff $800.00 for the first hour of a deposition or $1400.00 for a two hour
Hose v. Chicago & Northwestern Transp., Co, 154 F.R.D. 222 (D.C. Iowa 1994) (fee of $800.00 per hour charged by a neurologist was unreasonable, reduced to $400.00 per hour); Dominquez v. Cyntax Lab., Inc., 149 F.R.D. 166 (D.C. Ind. 1993) (fees of $800.00 and $860.00 per hour for deposition testimony deemed "grossly excessive"); Jochims v. Isuzu Motors, Ltd., 141 F.R.D. 493 (D.C. Iowa 1992) (court refused to direct plaintiff's expert to be compensated at the rate of $500.00 per hour by defense counsel, where expert only charged plaintiff's counsel $250.00); Anthony v. Abbott Lab., 106 F.R.D. 461 (D.C. R.I. 1985) (plaintiff's expert not entitled to a deposition fee of $420.00 per hour). 2 The court determined that the fee of $300.00 per hour was unreasonable under Fed. R. Civ. Pro. 26 and instead set the rate at $235.00. Nukem, 163 F.R.D. at 348. The Nukem Court asserted that "unless the court patrols the battlefield to ensure fairness, the circumstances invites extortion at fee setting." Id. at 347.
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deposition. Id. at 544-45. Plaintiff challenged the reasonableness of plaintiff expert's deposition fee under Fed. R. Civ. P. 26(b)(4)(C)(i). Id. at 544. 10. The Edin court concluded that defendant's expert, Dr. Maric, was unquestionably

a highly skilled and knowledgeable expert witness as he was a board-certified orthopedic surgeon, specializing in the spine and practicing medicine since 1986. Id. at 546. 11. The Edin Court also reviewed the varying types of fees that Dr. Maric charged

and noticed a discrepancy in regard to who the expert was dealing with, "i.e. retained counsel, adverse counsel, or his patient." Id. at 547 The Edin Court inferred "from this evidence that Dr. Maric charg[ed] significantly higher fees to discourage lawyers from involving the doctor in the discovery process . . . ." Id. (stating "[t]his extortionist practice cannot be condoned by the Court"). 12. Instead, the Edin Court was "compelled to enforce the Federal Rules of Civil

Procedure and order that only a reasonable fee be paid as part of the Court's obligation `to patrol the battle field to ensure fairness' and to eliminate extortionate fee setting." Id. at 547. The Edin Court found no reasonable relationship existed between the deposition services provided by Dr. Maric and the fee which he charged and determined that the deposition fee of $1400.00 for two hours was "grossly unreasonable" and found the sum of $450.00 per hour represented a reasonable fee. Id. 13. As in the case at bar, Dr. Wilkins' set his fees according to the identity of the

party. (Ex. F, Dr. Wilkins' rate sheet.) For example, Dr. Wilkins charges $500.00 per hour for a pre-deposition or pre-trial conference, $250.00 per hour for a phone consult, and a $600.00 flat fee for an independent medical examination. (Ex. F.) Dr. Wilkins only charges his highest rate

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of $1,000.00 per hour when dealing with opposing counsel. The obvious inference to draw from Dr. Wilkins' fee schedule is that he charges significantly higher fees to discourage lawyers from involving the doctor in the discovery process. 14. As in the case law cited above, Dr. Wilkins attempts to foist an extortionist fee

upon Defendant Philips. Philips' expert, Dr. Dinenberg, a comparable expert to Dr. Wilkins, charges $400.00 per hour for deposition testimony. Thus, Defendant Philips has offered to pay Dr. Wilkins a reasonable fee of $400.00 per hour for the time spent in his deposition. 15. Defendant Philips requests that this Court set a reasonable fee for Dr. Wilkins of

$400.00 per hour. 16. Defendant Philips also requests that this Court require Plaintiff to produce Dr.

Wilkins for a deposition far enough in advance of Defendant's expert disclosure deadline of August 8, 2005 to allow Defendant's expert to review and respond to Dr. Wilkins' testimony. Defendant Philips proposes any one of the following dates for Dr. Wilkins' deposition: July 19, 20, 22, 25, 27, or 28, 2005. WHEREFORE, Philips' counsel asks that the Court set Dr. Wilkins' fee at the reasonable rate of $400.00 per hour to be paid immediately following the conclusion of the deposition; that the Court require Plaintiff to make Dr. Wilkins available for one of the above dates; and that the Court make a forthwith determination of the issues addressed herein. DATED this 28th day of June, 2005.

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Respectfully submitted,. MONTGOMERY, KOLODNY, AMATUZIO & DUSBABEK, L.L.P.

C. Michael Montgomery Damian S. Stone 475 17th Street, Suite 1600 Denver, Colorado 80202 Telephone: (303) 592.6600 [email protected] [email protected] ATTORNEY FOR DEFENDANT PHILIPS MEDICAL SYSTEMS (CLEVELAND) INC.

CERTIFICATE OF MAILING I hereby certify that I did on June 28, 2005, serve a true and correct copy of the foregoing DEFENDANT PHILIPS MEDICAL SYSTEMS (CLEVELAND), INC.'S MOTION FOR PROTECTIVE ORDER TO LIMIT EXPERT FEES OF DR. WILKINS AND MOTION TO SET DEPOSITION DATE FOR DR. WILKINS AND REQUEST FOR FORTHWITH DETERMINATION in the manner indicated below and addressed as follows: Shelley B. Don, Esq. Don, Hiller & Galleher, P.C. 1737 Gaylord Street Denver, Colorado 80206 Facsimile (303) 572-0900 Robert C. Douglas, Jr., Esq. 16506 East Alamo Place Centennial, Colorado 80015 Fax Mail : Electronic Filing Delivery Geri O'Brien Williams, Esq. Dworkin Chambers & Williams, P.C. 3900 East Mexico Avenue, Suite 1300 Denver, Colorado 80210 Facsimile (303) 584-0995 Fax Mail : Electronic Filing Delivery

[Signature on file: Sandee Brundige] 6

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