Neurosurgeons might be able to charge more than other experts for their deposition testimony but $7,000 for two hours is "near to being extortionate," a New Jersey federal magistrate judge says.
As a consequence of her Dec. 30 ruling, the defendants in Crawford v. American Legion Ambulance Association, 08-cv-2338, will not have to pay more than $600 per hour when they depose the plaintiff’s medical expert, leaving the plaintiff to pick up the difference unless the expert agrees to lower his rate.
The expert, John Ratliff, an assistant professor of neurosurgery at Thomas Jefferson University Medical College in Philadelphia, charges $5,000 for the first hour of deposition and $2,000 for every hour thereafter.
His court appearances also come at a high price: $12,000 per day and rising to $15,000 when he has to go out of state, as in this case.
Plaintiff Vernon Crawford claims he was rear-ended by an ambulance in 2007, resulting in myelopathy and loss of spinal function. He was treated by Ratliff, consulted with him about the possibility of surgery and has designated him as a medical expert.
Lee Eckell, of Post & Schell in Princeton, N.J., who represents the defendants, American Legion Ambulance Association and ambulance driver Robyn Crispin, wants to depose Ratliff.
Under the Federal Rules of Civil Procedure, the party seeking discovery is the one who has to pay for the deposition. But Rule 26(b)(4)(C) requires discovery seekers to pay only a "reasonable fee for time spent."
Crawford’s attorney, David Heim, of Bochetto & Lentz in Philadelphia, moved on Aug. 21, asking for a ruling that Ratliff’s charges were reasonable in light of his qualifications and highly specialized expertise.
Heim’s certification described Ratliff as a "well respected author, lecturer and researcher" with 15 peer-reviewed publications to his credit and "subspecialty expertise in peripheral nerve disorders, as well as neurosurgical evaluation and treatment of nerve compression syndromes and peripheral nerve trauma, including complex reconstructive peripheral nerve surgery."
The fees to be paid Ratliff were from a schedule provided by Thomas Jefferson University’s Department of Neurosurgery, which said those rates had been paid in other cases, without reduction, stated Heim.
He also related his efforts to obtain other expert fee schedules for comparison by calling around to other area hospitals.
The Hospital of the University of Pennsylvania and Temple University Hospital both informed him their neurosurgeons do not do expert witness work, while two other places, Hanehmann University Hospital and the Washington Brain and Spine Institute, said they would check but never got back to him, he wrote.
Cooper University Hospital, however, provided an expert fee schedule for David Clements, a board-certified orthopedic surgeon who does spinal surgery. Clements charges $8,500 for in-court testimony and up to $4,500 for a deposition, rates Heim argued are commensurate with Ratliff’s.
Eckell countered with 3rd Circuit precedent that set reasonable expert fees at $200 to $500 per hour, though none of the cases involved a neurosurgeon.
He also highlighted the disparity between Ratliff’s fees and those for two other plaintiffs’ medical experts, one who charged $1,500 for the entire deposition and the other $500 per hour.
U.S. Magistrate Judge Karen Williams acknowledged that neurosurgery is a highly specialized area of practice and, thus, "a reasonable fee for a neurosurgeon may be well above a reasonable fee for other types of experts." She also called it surprising that neither side had provided information about deposition fees charged by a neurosurgeon with credentials similar to Ratliff’s.
She called "immensely instructive" a case from the District of Colorado she found through own research, Grady v. Jefferson County, 249 F.R.D. 657 (2008), which held that a neurosurgeon’s published fee of $2,000 per hour for deposition testimony was grossly excessive. The expert, Richard Spiro, chief of spine surgery at the University of Pittsburgh Medical Center, was willing to reduce his fee to $1,000 per hour for the case, a prisoner’s civil-rights suit alleging inadequate medical care, where the two Colorado surgeons acting as defense experts were charging $450 per hour. The Grady court found a reasonable hourly rate for Spiro was no more than $600 per hour.
Williams chose that same amount, noting Spiro practiced in the same state as Ratliff and had equally impressive credentials.
To avoid having to pay Ratliff’s hefty court appearance fee, Heim had also requested permission to videotape Ratliff’s trial testimony right after the deposition.
He argued that the contrast between the court appearance charge and the $2,000 per-hour cost of obtaining canned trial testimony right after deposition qualified as "exceptional circumstances" under Rule 32(a)(3)(E).
Williams denied the request, finding it would result in immense prejudice to the defendants. They would have to jump right into trial questioning without the chance to review the deposition transcript or refer to it and would have less time to prepare for cross-examination, she pointed out.
Heim says the fee set by the court is more than the $250 to $350 per hour courts typically allow for medical expert testimony and more than the defense was initially willing to pay. He hopes Ratliff will agree to accept the $600 rate, since his client will have to pay any overage.
Eckell declines comment.
New Jersey Law Journal
by Mary Pat Gallagher
January 06, 2010