Judge: Daniel M. Crowley, Case: 21STCV02453, Date: 2022-08-17 Tentative Ruling

Case Number: 21STCV02453    Hearing Date: August 17, 2022    Dept: 28

Defendants Greg Estel and Laura Estel’s Motion to Set Compensation for Expert Witness Johnathan Frank, M.D.

Having considered the moving, opposition and reply papers, the Court rules as follows. 

BACKGROUND

On January 21, 2021, Plaintiff Maria Rodriguez (“Plaintiff”) filed this action against Defendant Greg Estel (“Greg”) for negligence. Plaintiff later amended the complaint to include Defendant Laura Estel (“Laura”).

On February 25, 2021, Greg filed an answer. On June 18, 2021, Laura filed an answer.

On June 24, 2022, Defendants filed a Motion to Set Reasonable Expert Fee for Plaintiff’s Expert Johnathan Frank, M.D. to be heard on August 17, 2022. On August 4, 2022, Plaintiff filed an opposition. On August 9, 2022, Defendants filed a reply.

Trial is currently scheduled for April 14, 2023.

PARTY’S REQUESTS

Defendants request the Court set a reasonable rate for the expert witness deposition fee of Dr. Jonatan Frank, M.D., with a suggested rate of $1,500.00 per hour.

Plaintiff requests the Court deny the motion.

LEGAL STANDARD

Under CCP § 2034.470, if a party desiring to take the deposition of an expert witness deems the associated fee of taking that deposition unreasonable, that party may move for an order setting the compensation of that expert. Parties must attempt to meet and confer prior to filing the motion and must serve the expert with the motion. The Court may consider the frequency the expert charges this fee, the frequency in which the expert is paid this fee, the ordinary and customary fees charged by similar experts for similar services, and any other factors the court deems relevant and appropriate.

The Court shall impose a monetary sanction against any party, person, or attorney that unsuccessfully makes or opposed a motion to the set the expert witness fee, unless it finds that one acted with substantial justification.

DISCUSSION

In order to file a motion under CCP § 2034.470, the moving party must serve the expert with the motion. Defendants’ proof of service indicates that Frank was served the motion.

Frank lists his expert fee as $2,000.00; Defendants consider this fee to be unreasonable in light of the fact that Frank has previous charged only $1,500.00, and their own expert only charges $1,100.00. Frank has previously charged Defendants counsel only $1,500.00 per hour as recently as April 2019.Orthopedic surgeons in the Southern California area generally list their hourly deposition rates between $950.00 and $1250.00 for non-video depositions. Video depositions tended to run closer to $1,500.00 per hour.

Plaintiff argued that Frank has routinely received $2,000.00 an hour for deposition testimonies given in 2021 and 2022. He has testified in at least 12 deposition this year for which he has received $2,000.00 per hour in fees. Plaintiff also provided 2 additional orthopedic surgeons who also charge $2,000.00 per hour for deposition.

While Defendants note that Plaintiff’s other expert examples have had their fees reduced to $1,500.00 as recently as 2021 on the basis of the fees being excessive, the Court notes that those are other experts, not Frank.  In addition, the Court takes judicial notice that, according to the U.S. Bureau of Labor Statistics, as of July 2022, the Consumer Price Index had risen 8.5% in the last year.  Accordingly, the Court finds that Defendants have failed to meet their burden under Code of Civil Procedure section 2034.470.

CONCLUSION

Defendants Greg Estel and Laura Estel’s Motion to Set Compensation for Expert Witness Johnathan Frank, M.D. is DENIED.

            Moving Party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.