Judge: Richard Y. Lee, Case: 30-2020-01149252, Date: 2022-09-01 Tentative Ruling

Defendant, Nicole Martha Dellipaoli (“Defendant”) moves for an order compelling Plaintiff Kaitlyn Cannady’s expert, Dr. Fardad Mobin to appear and testify at deposition and setting a reasonable rate of $1,500 an hour for his deposition testimony.

Defendant contends that Defendant originally set Dr. Mobin’s deposition for May 24, 2022, but that the deposition did not go forward due to the unavailability of counsel and Dr. Mobin, and that it was then re-set for July 6, 2022, but that Dr. Mobin’s requested hourly rate of $2,400 for deposition testimony is unreasonable given that this is a recent increase from $1,500, his historical rates, and market rates for similar experts, as well as Dr. Mobin’s failure to provide the information required by Code of Civil Procedure section 2034.470. Defendant also contends that Defendant has attempted to meet and confer with Plaintiff’s counsel and Dr. Mobin through Plaintiff’s counsel, to reduce his rate from $2,400 to $1,500, but that Dr. Mobin refused to decrease his fee. Defendant additionally contends that there are considerations to determine what is reasonable to force a litigation opponent to pay Dr. Mobin, including that a litigation opponent cannot walk away from the expert like a client can, and that Plaintiff can compensate Dr. Mobin with the additional sum necessary to placate Dr. Mobin. Defendant further contends that Dr. Mobin is not permitted to charge more to a litigation opponent for deposition than he charges his own client for testimonial work, and that it is Defendant’s counsel’s understanding that Dr. Mobin charges his actual client, Plaintiff, $7,500 for four hours of court testimony which works out to $1,875 per hour for trial testimony. Finally, Defendant contends that the market hourly rate for similar experts for similar services within the relevant community is less than $2,400; that defense expert orthopedic surgeon, Dr. Michael Weinstein charges $1,200 for deposition, that if a higher rate is warranted, it should only be slightly higher, and that Defendant is willing to pay $1,500 per hour.

Plaintiff Kaitlyn Cannady (“Plaintiff”) contends that the factors described in Code of Civil Procedure section 2034.470 show that Dr. Mobin’s fee rate of $2,400 is reasonable and appropriate based upon his neurosurgical expertise and practice location in Beverly Hills; that in February 2022, Dr. Mobin changed his hourly rate for deposition testimony from $1,500 per hour to $2,400 per hour because of prevailing economic headwinds, including inflation; and that since then, he has been deposed as an expert 27 times outside this subject litigation and has charged and received his current $2,400 hourly rate. Plaintiff contends that Defendant’s proposed fee is arbitrary and based primarily upon fees charged by orthopedists that the defense regularly hires who do not practice in the community of Beverly Hills, such as Dr. Weinstein who is well known as primarily a defense-oriented medical expert, who is not a neurosurgeon, and who does not practice in the community of Beverly Hills.

Notice and Meet and Confer

If a party desiring to take the deposition of an expert witness 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. (Code Civ. Proc. § 2034.470(a).) Notice of this motion shall be given to the expert. (Ibid.) A motion under subdivision (a) “shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc. § 2034.470(b).)

Here, notice was properly given to Plaintiff by mail, and to Dr. Mobin by personal service. (ROA 94, 98.)

The Declaration of Jennifer Leeper and exhibits filed in support of the motion provides that Plaintiff served Plaintiff’s Expert Witness Designation on May 2, 2022, on Defendant and designated Dr. Mobin, a neurosurgeon, as a retained expert witness. (Ex. A to Separately Bound Evidence (“Evidence”).)

The e-mail correspondence between Plaintiff’s counsel and Defendant’s counsel indicates that Plaintiff’s counsel offered to forward any letter to meet and confer with Dr. Mobin concerning his fee to Dr. Mobin on Defendant’s behalf, that Defendant’s counsel prepared and sent such letter accordingly, and that Plaintiff’s counsel informed Defendant’s counsel that Dr. Mobin would not agree to lower his fee and that State Farm had paid his fee before so that “it is odd that it is not paying it now.” (Exs. B through D, and L to Evidence.)

In addition, Plaintiff’s counsel sent an e-mail to Defendant’s counsel setting forth Dr. Mobin’s position on the fee issue which explains the reason for increasing his hourly deposition rate, and states, in part, “My deposition fee is within community standards for an experienced fellowship trained neurosurgeon. Our fees have been honored and paid by multiple law firms since its inception.” (Ex. O to Evidence.)

Based on the foregoing, neither Plaintiff nor Dr. Mobin provided Defendant with proof of the ordinary and customary fee actually charged and received by Dr. Mobin for similar services provided outside the subject litigation; the total number of times the presently demanded fee has ever been charged and received by Dr. Mobin; and the frequency and regularity with which the presently demanded fee has been charged and received by Dr. Mobin within the two-year period preceding the hearing on the motion, as required by Code of Civil Procedure section 2034.470(b).

Despite this failure to comply with Code of Civil Procedure section 2034.470(b), the Court will address the merits of the motion.

Merits

“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.” (Code Civ. Proc. § 2034.470(c).)

Code of Civil Procedure section 2034.470 also provides in pertinent part: “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.” (Code Civ. Proc. § 2034.470(d).)

Here, the Opposition includes a Declaration of Dr. Fardad Mobin, M.D. which states, “[s]ince February 2022, my deposition fee rate is $2400.00 per hour, with an additional $750 charge if the deposition is videotaped. This rate is an increase from my prior deposition rate of $1500.00 per hour.” (Declaration of Dr. Fardad Mobin, M.D., ¶ 3.) Said declaration also provides, “[s]ince February 2022, I have been deposed a total of 27 times, with my new fee schedule, in litigated matters. In each of these depositions, I was paid my now usual and customary rate of $2400.00 per hour, with an additional charge of $750.00 if the deposition was videotaped.” (Id., ¶ 4.) True and correct copies of the payment Dr. Mobin received for the 27 times he has been deposed since he changed his fee are attached as Exhibit 1. (Id., ¶ 5.)

While the foregoing provides proof of the ordinary and customary fee actually charged and received by Dr. Mobin for deposition testimony provided outside the subject litigation in 27 instances as required by Code of Civil Procedure section 2034.470(c), Plaintiff does not submit evidence by Dr. Mobin as to the “(1) The total number of times the presently demanded fee has ever been charged and received by that expert,” and “(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” as required under Code of Civil Procedure section 2034.470(d).) As a result, the Court has insufficient information to make a determination as to the reasonableness of the $2,400 hourly fee.

“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.” (Code Civ. Proc. § 2034.470(e).

The fee determination is within the trial court’s discretion. (Marsh v. Mountain Zephyr, Inc. (1996) 43 Cal.App.4th 289, 303.) An expert’s “customary” hourly fee is not conclusively deemed “reasonable.” (Id. at p. 304.) The expert’s “customary” hourly fee for deposition testimony is merely one factor in determining what a “reasonable” fee is. (Ibid.)

“Any fees charged by the expert in excess of the ‘reasonable’ fee determined by the court remain a matter of negotiation and agreement between the expert witness and the party that designated the expert witness.” (Id. at p. 300.) “[T]he balance or ‘unreasonable’ portion of an expert witness’s hourly or daily fees for deposition testimony is not ‘transferred’ to the deposing party and remains a matter between the expert witness and the designating party.” (Id. at p. 301.)

While Defendant refers the Court to fees charged by its expert, Dr. Michael Weinstein, Dr. Weinstein is an orthopedic surgeon, not a neurosurgeon, such that his rate does not show the ordinary and customary fees charged by similar experts, i.e., neurosurgeons, for deposition testimony within the relevant community. (Exs. M and N to Evidence.)

“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.” (Code Civ. Proc. § 2034.470(f).).]

Based on the information provided to the Court, the Court sets the Plaintiff’s expert fee to be paid by the defense at $1700 per hour.  There is no additional fee for videotaping the deposition.  Failure to make the expert available for deposition will likely result in the Plaintiff being precluded from calling the expert at trial.

The motion is therefore GRANTED.  Plaintiff’s expert is ordered to appear for his deposition within 20 days.

Defendant to give notice.