Judge: Deirdre Hill, Case: BC710314, Date: 2023-01-27 Tentative Ruling

Case Number: BC710314    Hearing Date: January 27, 2023    Dept: M

Hearing Date:                         January 27, 2023        

Moving Parties:                      Defendant Jennifer Chu, M.D.

Responding Party:                  Plaintiff Cassandra Lee Webster Avance

Motion to Specially Set Expert Witness Fees

            The court considered the moving, opposition, and reply papers and supplemental papers.  The court had granted defendant’s ex parte application shortening time to hear the motion.  The court continued the January 23, 2023 hearing to allow plaintiff and its expert witness David Mayer, M.D. to comply with CCP §§2034.470(c) and (d) and to provide evidence as to the ordinary and customary fees charged by similar experts for similar services within the relevant community, which is Southern California.  CCP §2034.470(e).

RULING

            The motion is GRANTED.  See ruling below.

BACKGROUND

On June 15, 2018, plaintiff Cassandra Lee Webster filed a complaint against Jennifer C. Chu, M.D. and Providence Little Company of Mary Medical Center Torrance for (1) medical negligence, (2) lack of informed consent, (3) ostensible agency/vicarious liability, (4) medical battery, (5) negligent misrepresentation, (6) corporate hospital liability, and (7) negligent infliction of emotional distress.

            On January 18, 2019, the court ruled as follows on defendant Providence’s demurrer:  sustained with 60 days leave to amend as to the 2^nd, 4^th, and 5^th causes of action, sustained without leave to amend as to the 7^th cause of action, and overruled as to the 3^rd and 6^th causes of action.

            On March 15, 2019, at the hearing on defendant Dr. Chu’s demurrer, the court sustained with leave to amend as to the 4^th and 5^th causes of action and sustained without leave to amend as to the 7^th cause of action.

            On March 26, 2019, plaintiff filed a First Amended Complaint for (1) medical negligence, (2) lack of informed consent, (3) ostensible agency/vicarious liability, (4) medical battery, (5) negligent misrepresentation, and (6) corporate hospital liability.

            On October 22, 2020, the court denied Jennifer Chu, M.D.’s motion for summary judgment and summary adjudication as to the 1^st cause of action and granted summary adjudication as to the 2^nd cause of action.

            Trial is set for February 22, 2023.

LEGAL AUTHORITY

            Under CCP §2034.470, “(a) If a party desiring to take the deposition of an expert witness under this article deems that the hourly or daily fee of that expert for providing deposition testimony is unreasonable, that party may move for an order setting the compensation of that expert.  Notice of this motion shall also be given to the expert.

(b) A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040. In any attempt at an informal resolution under Section 2016.040, either the party or the expert shall provide the other with all of the following:

(1) Proof of the ordinary and customary fee actually charged and received by that expert for similar services provided outside the subject litigation.

(2) The total number of times the presently demanded fee has ever been charged and received by that expert.

(3) The frequency and regularity with which the presently demanded fee has been charged and received by that expert within the two-year period preceding the hearing on the motion.

(c) In addition to any other facts or evidence, the expert or the party designating the expert shall provide, and the court's determination as to the reasonableness of the fee shall be based on, proof of the ordinary and customary fee actually charged and received by that expert for similar services provided outside the subject litigation.

(d) In an action filed after January 1, 1994, the expert or the party designating the expert shall also provide, and the court's determination as to the reasonableness of the fee shall also be based on, both of the following:

(1) The total number of times the presently demanded fee has ever been charged and received by that expert.

(2) The frequency and regularity with which the presently demanded fee has been charged and received by that expert within the two-year period preceding the hearing on the motion.

(e) The court may also consider the ordinary and customary fees charged by similar experts for similar services within the relevant community and any other factors the court deems necessary or appropriate to make its determination.

(f) Upon a determination that the fee demanded by that expert is unreasonable, and based upon the evidence and factors considered, the court shall set the fee of the expert providing testimony.

(g) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to set the expert witness fee, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”

DISCUSSION

            Defendant Jennifer Chu, M.D. requests that the court set the compensation of plaintiff’s expert David A. Mayer, M.D. for deposition.

            Defendant contends that Dr. Mayer’s deposition rate of $7,000 is unreasonable as the deposition is estimated to take about two hours and no reasonable hourly rate has been communicated and confirmed.  Defendant asserts that plaintiff designated general surgeon Dr. Mayer who is “expected to testify and offer opinions and conclusions regarding his review of the any and all medical records, x-rays, and/or MRI films, pertaining to plaintiff, causation of plaintiff’s injuries arising out of this incident.  Retained expert will also comment on the standard of care and how defendant breached the standard of care and the resulting damages.”

            Defendant also argues that Dr. Mayer’s expert fees are unreasonable compared to the relevant community.  Defendant’s physician obstetrics/gynecologist expert charges $800/hr.  Defendant contends that the ordinary and customary fees for general surgeons in the Southern California area range from approximately $950/hr. - $1000/hr. for the their deposition testimony.  See Paul Cook, Esq. decl.  Although requested by defense counsel, plaintiff’s counsel did not provide any of the information required under CCP §2034.470 (b) during the meet and confer.

            In opposition, plaintiff argues that she will be prejudiced if the court grants the motion as she may have to find another expert witness in a short amount of time if the expert chooses not to move forward.  Plaintiff asserts that Dr. Mayer has “only charged a flat fee in his career as an expert witness, and not an hourly fee.”  Also, plaintiff contends, the deposition may take more than two hours and per Dr. Mayer’s fee schedule, there is a four hour minimum deposition requirement.  His fee is comprised of a $3,000 fee for preparation work and a $4,000 fee for a four hour minimum deposition.  For any hour above four hours, Dr. Mayer charges $1,000 per hour.  See Dr. Mayer letter and fee schedule.  Exhs. B, C.  Plaintiff contends that the ordinary and customary fee for general surgeons in New York is approximately $5,000 per day.  In any event, plaintiff contends, the expert fee is reasonable as Dr. Mayer has over 35 years in practice as a general surgeon with expertise in vascular and bariatric surgery and over 25 years as an expert witness.

In the previous ruling, the court noted that plaintiff’s counsel did not provide any of the information required under CCP §2034.470(b) during defense counsel’s multiple attempts to obtain such information.  As to the court’s consideration and evaluation of the factors under sections 2034.470(c) and 2034.470(d), plaintiff had failed to provide (1) proof of the ordinary and customary fee actually charged and received by that expert for similar services provided outside the subject litigation; (2) the total number of times the presently demanded fee has ever been charged and received by that expert; and (3) the frequency and regularity with which the presently demanded fee has been charged and received by that expert within the two-year period preceding the hearing on the motion.  As to the ordinary and customary fees charged by similar experts for similar services within the “relevant community” plaintiff provided information as to New York but not Southern California.

In a supplemental opposition, plaintiff argues that Dr. Mayer’s expert fee is ordinary, customary, and reasonable.  Plaintiff uses examples from Expert A (Pacific Palisades) who charged $4,000 for deposition, including preparation fee and Expert B (Los Angeles) who charged $2,500 (for four hours, $4,500 including prep work fee).  The court notes that the declaration of counsel Mina Boules is defective as it was not under penalty of perjury.  Further, there is no declaration from Dr. Mayer.  His “letter” to the court states that he testified as an expert witness for over 30 years and has testified as an expert in over 200 cases and over the last two years, he testified in approximately 20 depositions and his expert witness fee was $7,000 per deposition.  He attaches “invoices” from other cases in 2022.

In the supplemental reply, defendant argues that plaintiff has not shown sufficient evidence that Dr. Mayer’s expert fees are ordinary, customary, and reasonable.  Defendant asserts that the issue at hand under CCP §2034.470, et seq. is regarding a reasonable hourly or daily rate to provide deposition testimony and does not include preparation work.  Defendant further argues that plaintiff has not shown sufficient evidence as to prevailing rates in the relevant community as plaintiff does not provide details as to the experts used as examples.

The court rules as follows:  The court determines that the $7,000 fee [$4,000 for deposition and $3,000 for prep] demanded by expert witness Dr. David Mayer is unreasonable, and based upon the evidence and factors considered, the court sets the fee of Dr. David Mayer at $4,500 for deposition, including prep work fee.  This amount is in line with the ordinary and customary fees charged by similar experts for similar services within the relevant community of Southern California.

The motion is thus GRANTED.

            Defendant is ordered to give notice of ruling.