Judge: William A. Crowfoot, Case: 20STCV22138, Date: 2022-10-03 Tentative Ruling

Case Number: 20STCV22138    Hearing Date: October 3, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On June 11, 2020, plaintiff Edik Honarchian (“Plaintiff”) filed this action against defendant Ellen Pat Welch (“Defendant”) arising from a motor vehicle collision that occurred on August 9, 2019.  On September 1, 2022, Defendant filed this motion for an order setting a reasonable rate for Plaintiff’s expert witness, Stepan Kasimian, M.D. (“Dr. Kasimian”).  Defendant contends that Dr. Kasimian’s $2,000 per hour fee is unreasonable. 

If a party desiring to take the deposition of an expert witness deems that the hourly or daily fee of that expert 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.  (Code Civ. Proc., § 2034.470, subd. (a).)  A motion to set expert compensation shall be accompanied by a meet and confer declaration and 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 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.  (Code Civ. Proc., § 2034.470, subd. (b).)  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, subd. (c).)  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, subd. (f).)

Defendant offers to pay Dr. Kasimian $1,400 per hour of deposition testimony and states that other board-certified orthopedic surgeons do not charge as much.  Steven Nagelberg, M.D., who is Defendant’s retained expert, charges $975 per hour for a deposition.  (Appendix, Ex. A.)  Other experts charge $950 to $1,250 per hour for a deposition.  (See Motion, 5:18-6:2; Appendix, Exs. G, I, K, M, O.)  In contrast, Dr. Kasimian demands $2,000 per hour of deposition testimony or $2,500 per hour for a videotaped deposition.

In opposition, Plaintiff argues that Dr. Kasimian’s usual and customary rate is $2,000 per hour and he has been paid at this rate over 37 times in 2021.  Dr. Kasimian declares that he sees patients every 15 minutes and sees, on average, about 120 to 150 patients per week.  (Opp., Kasimian Decl., ¶ 4.)  He performs approximately 4 surgeries per week.  (Ibid.)  The fee is designed to account for lost revenue. (Ibid.) 

Plaintiff also submits that two other spine surgeons charge similar rates and includes the rate sheet for K. Rad Payman, M.D., and A.N. Shamie, M.D., showing that Dr. Payman charges $1,680 per hour and Dr. Shamie charges $2,000 an hour.  Plaintiff did not submit the curriculum vitae for either expert and the Court cannot evaluate whether their experience or qualifications are commensurate with Dr. Kasimian or the experts that Defendant refers to. 

As stated above, Defendants have provided the fees for board certified orthopedic surgeons who routinely serve as trial experts in the community, and their deposition hourly rate ranges between $950-$1,250.  The Court finds that Dr. Kasimian’s requested rate of $2,000 for non-videotaped depositions (and $2,500 for videotaped depositions) is unreasonable.  Based on the evidence provided by Defendants of other like-qualified orthopedic surgery experts, who have charged as much as $1,250 per hour, the Court finds that an hourly rate of $1,400 to be reasonable and will thus set the compensation at this amount. 

The court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to set the expert witness fee, unless the one subject to sanction acted with substantial justification or there are other circumstances that make the imposition of the sanction unjust.  (Code Civ. Proc., § 2034.470, subd. (g).)

As Defendant did not request sanctions in connection with this motion, the Court declines to impose any.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.