Judge James A. Mangione, Case 37-2021-00005371-CU-MM-CTL 2024-03-22 Tentative Ruling

Judge: James A. Mangione, Case: 37-2021-00005371-CU-MM-CTL, Date: 2024-03-22 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - March 21, 2024

03/22/2024 09:00:00 AM C-75 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:James A Mangione

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Civil - Unlimited Medical Malpractice Motion Hearing (Civil) 37-2021-00005371-CU-MM-CTL SCHWARTZ VS SHARP HEALTHCARE [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Plaintiffs' Motion Setting Expert Compensation for Expert Joseph Ciacci, M.D., is granted in part.

Plaintiffs challenge expert deposition fee rate charged by Defendants' neurology expert, Dr. Joseph Ciacci. His deposition fee is '$1,500.00 per hour with the first hour paid in advance. If the deposition is videotaped, Dr. Ciacci's fee is $2,000 per hour with the first hour paid in advance.' Code Civ. Proc., § 2034.470 states, in relevant part: (b) A motion under subdivision (a) shall be accompanied . . . 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.

Joseph Ciacci, M.D., submitted a declaration stating that he has been providing expert services for ten years at his current fee, that no court has reduced his fee rate and that he has received his fee rate approximately 20 times in his career and 3-5 times in the last two years. He also included an invoice from a deposition taken in August 2023, in which he received his $2000/hour fee for a videotaped deposition. Additionally, Defense Counsel submitted a declaration identifying similar deposition rates by Calendar No.: Event ID: TENTATIVE RULINGS

3064256 4 CASE NUMBER: CASE TITLE: SCHWARTZ VS SHARP HEALTHCARE [IMAGED] 37-2021-00005371-CU-MM-CTL other doctors in this case and another neurosurgeon employed by Defendant Neurosurgical Medical Clinic, Inc. Contrarily, Plaintiffs provided evidence that their expert's deposition fee was only $600/hour and hearsay testimony from another attorney as to their experience with deposition rates for this type of expert.

The Court finds that Defendants have provided sufficient evidence that Dr. Ciacci's hourly deposition rates are not unreasonable. However, the Court finds no reasonable basis for charging different rates for videotaped versus non-videotaped depositions. Charging an additional $500/hour to videotape the deposition serves only to dissuade Plaintiffs for exercising their right to have the deposition videotaped.

The Court sets Dr. Ciacci's deposition rate at $1,500 per hour with the first hour paid in advance, regardless of whether the deposition is videotaped.

The minute order is the order of the Court.

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