The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
NATASHA RUIZ,
Plaintiff,
v. Case No: 6:21-cv-1628-WWB-LHP
SHARKNINJA OPERATING LLC and
WALMART INC.,
Defendants
ORDER
This cause came on for consideration without oral argument on the following
motion filed herein:
MOTION: PLAINTIFF’S SHORT-FORM DISCOVERY MOTION
TO ESTABLISH A REASONABLE FEE FOR THE
DEPOSITION OF DEFENDANTS’ EXPERT DR.
ANUP PATEL, M.D. (Doc. No. 39)
FILED: April 17, 2023
THEREON it is ORDERED that the motion is GRANTED in part
and DENIED in part.
I. BACKGROUND
On May 12, 2021, Plaintiff filed suit in the Ninth Judicial Circuit in and for
Osceola County against Defendants SharkNinja Operating, LLC (“SharkNinja”)
and Walmart, Inc. (“Walmart”), alleging counts of strict liability and negligence
against each Defendant and one count of breach of implied warranty against
Walmart. Doc. No. 1-1. In sum, Plaintiff alleges that she purchased at a Walmart
retail store a Nutri Ninja Pro BL450 food blender that was designed, manufactured,
produced, imported, supplied, and/or distributed by SharkNinja, the blender was
defective, and Plaintiff suffered severe and permanent hand injuries while using
the defective blender. Id., ¶¶ 16-23. Defendants removed the case to this Court
on October 1, 2021. Doc. No. 1.
By the present motion, Plaintiff challenges the deposition fees charged by one
of SharkNinja’s disclosed experts, Anup Patel, M.D. Doc. No. 39. Upon proper
notice, Plaintiff conducted a videotaped deposition of Dr. Patel on March 14, 2023
for a period of two hours and eight minutes. Doc. No. 39-2. During his
deposition, it became clear that the parties were not in agreement over the hourly
rates for Dr. Patel – with Dr. Patel stating that he would not take less than $1,500.00
for the first deposition hour, and $1,000.00 for every subsequent hour. Id., at 96-
97. See also Doc. No. 53-1 (Dr. Patel’s fee schedule confirming he charges “$1,500
first 60 minutes and $500 each additional 30 minutes” for videotaped depositions).
On March 15, 2023, Dr. Patel invoiced Plaintiff’s counsel for a total of $2,750
($1,500.00 for hour one, $1,000.00 for hour two, and $250.00 for the next quarter
hour). Doc. No. 39-4.
Plaintiff now contends that Dr. Patel’s rates are unreasonably excessive, and
requests that they be reduced to $500.00 an hour. Doc. No. 39. SharkNinja
opposes the request, arguing that Dr. Patel’s stated rates are appropriate given his
experience and specializations. Doc. No. 40. With leave of Court, the parties
submitted supplemental briefing. Doc. Nos. 51, 53; see also Doc. No. 41. With the
issues fully briefed, and for the reasons set forth below, Plaintiff’s motion (Doc. No.
39) is due to be granted in part to the extent that the Court finds Dr. Patel’s
requested hourly rates unreasonably high, but denied to the extent that the Court
finds Plaintiff’s suggested $500.00/hour rate too low.
II. APPLICABLE LAW
Federal Rule of Civil Procedure 26(b)(4)(A) provides that “[a] party may
depose any person who has been identified as an expert whose opinions may be
presented at trial.” Fed. R. Civ. P. 26(b)(4)(A). And Rule 26(b)(4)(E) states in
relevant part that “[u]nless a manifest injustice would result, the court must require
that the party seeking discovery . . . pay the expert a reasonable fee for time spent
in responding to discovery under Rule 26(b)(4)(A) or (D).” Fed. R. Civ. P.
26(b)(4)(e). In determining what constitutes a reasonable fee, courts look at the
following factors: “(1) the prevailing rate for a comparable, available expert; (2) the
witness’s area of expertise; (3) the education and training required for the opinion
sought; (4) the nature, quality, and complexity of the discovery responses provided;
(5) the fee being charged to those who retained the expert; (6) the cost of living in
the particular geographic area; (7) fees traditionally charged on related matters; and
(8) any other factor likely to be of assistance to the court in balancing the interests
implicated by Rule 26.” Gluck v. Geico Gen. Ins. Co., No. 8:19-cv-634-T-27AEP, 2020
WL 339593, at *1 (M.D. Fla. Jan. 21, 2020) (citing Fell v. United States, No. 3:15-cv-
541/MCR/EMT, 2017 WL 2819040 (N.D. Fla. June 9, 2017), report and
recommendation adopted, 2017 WL 2817881 (N.D. Fla. June 29, 2017)).
“As a general rule, the party seeking reimbursement of deposition fees bears
the burden of proving reasonableness.” Aguila v. Amer. Inst. for Foreign Study, Inc.
et al., No. 22-21146-Civ-WILLIAMS/TORRES, 2023 WL 5317831, at *3 (S.D. Fla. July
24, 2023) (quoting Mannarino v. United States, 218 F.R.D. 372, 374 (E.D.N.Y. 2003)).
Ultimately, however, “a balance is necessary between enabling a party to attract
competent experts and ensuring that the inquiring party ‘will not be unfairly
burdened by excessive ransoms which produce windfalls for [the other party’s]
experts.’” Roca Labs, Inc. v. Consumer Op., Corp., No. 8:14-CV-2096-T-33EAJ, 2015
WL 12844308, at *2 (M.D. Fla. July 23, 2015) (quoting Fraser v. AOL LLC, No. 3:06–
cv–954–J–20TEM, 2008 WL 312670, at * 1 (M.D. Fla. Feb. 4, 2008)). Thus, “the
question of what fee is reasonable falls within the discretion of the Court.” Gluck,
2020 WL 339593, at *1 (citation and quotation marks omitted).
III. ANALYSIS
The parties supplied briefing on five of the seven factors listed in Gluck and
Fell: Dr. Patel’s area of expertise; the fees traditionally charged by Dr. Patel on
related matters; the nature, quality, and complexity of the discovery responses
provided by Dr. Patel; the fees being charged to SharkNinja counsel; and the
prevailing rate for a comparable expert to Dr. Patel. Doc. Nos. 39, 40, 51, 53. See
Fell, 2017 WL 2819040, at *3 (“The list of factors that may be relevant can vary from
case to case.”). Applying the five Gluck and Fell factors briefed by the parties, and
upon due consideration of the parties’ briefs and submitted evidence, the Court
concludes that an appropriate expert fee for Dr. Patel’s deposition is $750.00 an
hour.
With respect to Dr. Patel’s area of expertise, there is no doubt that Dr. Patel is
a well-educated and highly qualified plastic surgeon. He is board-certified by the
American Board of Plastic Surgery, graduated valedictorian of his undergraduate
class at the University of Florida and top of his class at Yale University School of
Management and Yale University School of Medicine, and completed hand and
microsurgery fellowships at New York University Hospital and Mount Sinai
Medical Center. Doc. No. 39-2, at 7; Doc. No. 40-1. He practices at Orlando Hand
Surgery Associates and Orlando Plastic Surgery Institute, has served on numerous
advisory boards, committees, and public outreach programs, and is a prolific
presenter/lecturer/publisher. Doc. No. 40-1. See also Doc. No. 51, p. 3 (Plaintiff
conceding “Dr. Patel is undoubtedly a well-educated and qualified practicing
doctor and surgeon”).
Moreover, Dr. Patel is not a treating physician of Plaintiff, and as such, courts
in this district generally afford slightly higher expert witness fees than those
awarded to similarly situated treating physicians. See, e.g., Cartrette v. T & J
Transp., Inc., No. 3: 10–cv–277–J–25MCR, 2011 WL 899523, at * 1 (M.D. Fla. Mar. 15,
2011) (awarding lower rates to treating physicians that provide expert testimony
because “in cases where the testimony is from a treating physician (as opposed to a
specially retained expert), the Court should also consider the fact that, ‘[w]hen
knowledge gained [through the doctor-patient] relationship bears on an issue in
controversy, the treating physician assumes the obligation born by all citizens to
give relevant testimony.’”) (citing Fraser v. AOL LLC, No. 3:06–cv–954–J–20TEM,
2008 WL 312670, at *1 (M.D. Fla. Feb. 4, 2008)); see also Roca Labs, Inc., 2015 WL
12844308, at *2 (“In the Eleventh Circuit, expert deposition fees may be reduced
where the expert is a treating physician.”).
However, the main area of dispute in this matter is whether Plaintiff suffers
from complex regional pain syndrome. See Doc. No. 39-2, at 19:5 (Dr. Patel stating
“the crux of this case is [complex regional pain syndrome].”). To that end, Dr. Patel
conceded during his deposition that his experience and expertise in this area is not
at the same level as his experience in plastic surgery. Doc. No. 39-2, at 14:9–23 (Dr.
Patel confirming he is not board certified in physical medicine and rehabilitation,
pain medicine, or interventional pain management); Id. at 15:2–21 (Dr. Patel stating
none of his research or publication credits have directly related or were “designed
to address” complex regional pain syndrome); Id. at 10:2-7 (Dr. Patel noting that
since 2016 he has only diagnosed complex regional pain syndrome about 20 times).
Thus, despite Dr. Patel’s impressive credentials, his lack of heightened expertise in
the particular field of complex regional pain syndrome weighs against his claim to
his requested deposition rate. See Dobson v. Matrixx Initiatives, Inc., No. 05–80984–
CIV–RYSKAMP/VITUNAC, 2007 WL 842130, at *1 (S.D. Fla. Mar. 20, 2007)
(reducing a causation and damages expert’s fee because “[a]lthough [he] is board
certified in neurology and psychiatry, he did not treat Plaintiff for psychiatric
issues.”).
Moreover, with regards to the second Gluck and Fell factor, the fees Dr. Patel
traditionally charges on related matters, paramount to that consideration is Dr.
Patel’s limited experience as an expert witness. Dr. Patel has only appeared as an
expert witness twice, with both instances occurring approximately four years prior
to his deposition in this case. Doc. No. 39-2, at 5:6–6:8. This inexperience also
weighs against Dr. Patel’s claim to his requested deposition rates. See Roca Labs,
Inc., 2015 WL 12844308, at *3 (reducing by 50% the proposed rate of an expert
witness who had not previously testified as an expert witness).
In addition, the third Gluck and Fell factor, the nature, quality, and complexity
involved in Dr. Patel’s work and discovery in this case, does not weigh in favor of
the hourly rates he seeks. His participation in this litigation to this point has been
limited, apparently consisting of a single medical evaluation, his deposition
testimony, and a four-page January 10, 2023 report with general medical findings
about the residual functional capacity of Plaintiff’s hand. See Doc. No. 39-3. And
SharkNinja fails to produce sufficient evidence suggesting this products liability
case is novel or complex. See Aguila, 2023 WL 5317831, at *4 (reducing fees for
several experts because “nothing about the deposition transcripts or the allegations
in this [] dispute suggest novelty or unusual complexity.”).
The fifth Gluck and Fell factor, the prevailing rate for comparable experts to
Dr. Patel, also weighs against the rates requested by Dr. Patel and SharkNinja. The
market rate for board-certified non-treating physician experts like Dr. Patel is
markedly lower than Dr. Patel’s requested rate. See, e.g., Roca Labs, Inc., 2015 WL
12844308, at *3 (reducing a board-certified non-treating physician’s requested
expert fee rate from $750.00 an hour to $500.00 an hour); Barnes v. Hickox, No. 3:08–
cv–938–J–25JRK, 2009 WL 10670584, at *3 (M.D. Fla. Oct. 13, 2009) (reducing a
board-certified non-treating physician’s requested expert fee from $1100.00 an hour
to $975.00 an hour); Aguila, 2023 WL 5317831, at *5 (reducing a board-certified
non-treating physician’s requested expert fee from $1100.00 an hour to $750.00 an
hour); Dobson, 2007 WL 842130, at *2 (reducing a board-certified non-treating
physician’s requested expert fee from $1450.00 for the first hour and $1082.00 every
subsequent hour to $500.00 an hour). See also Doc. Nos. 51-1, 51-2 51-3 (listing
$500.00/hour for non-treating board-certified expert surgeon in Jacksonville,
Florida). And SharkNinja provides no persuasive legal authority suggesting that
the relevant market rate would support the rates requested by Dr. Patel.1
The only factor that appears to weigh in favor of Dr. Patel’s higher rates is the
fourth Gluck and Fell factor, the fees being charged to SharkNinja. Apparently,
SharkNinja has already agreed to pay Dr. Patel $800 an hour for phone conferences
1 SharkNinja cites to two decisions in support of Dr. Patel’s requested rates, but
neither is persuasive. The first is a Florida trial court decision that provides no
explanation for the awarded rates, and does not address the eight factors used by courts
in this Circuit. Reeves v. Kofler, 2018 Fla. Cir. LEXIS 1452 (Fla. 4th Cir. Ct. July 30, 2018).
The second is a decision from the District of Colorado, in which the court was greatly
persuaded by the fact that the opposing party did not challenge the deposition fee and did
not provide the court with any information about comparable rates charged by similar
experts in that District. Burke v. State Farm Mut. Auto. Ins. Co., 2022 U.S. Dist. LEXIS 203530
(D. Colo. Nov. 8, 2022). Here, in contrast, Plaintiff has objected to Dr. Patel’s rates, and
provided persuasive authority suggesting that a comparable rate for an expert of Dr.
Patel’s expertise is much lower than what he has requested.
and $3000 an hour for a minimum of three hours for his trial testimony.2 Doc. No.
53, at 3–4. However, this is the only factor that supports pushing the high hourly
rates Dr. Patel seeks upon Plaintiff, and on balance, the factors that the parties have
discussed weigh in favor of a lower rate. Nevertheless, as discussed above, the
$500.00 per hour rate suggested by Plaintiff is too low, and does not take into
account the fact that Dr. Patel is not a treating physician in this case. Thus, in the
Court’s discretion, the Court concludes that an hourly rate of $750.00 an hour is
appropriate in light of the evidence provided and the market rates for similarly
qualified board-certified physicians in this judicial District and Circuit.
IV. CONCLUSION.
For the reasons stated herein, Plaintiff’s Motion to Establish a Reasonable Fee
(Doc. No. 39) is GRANTED in part and DENIED in part. It is ORDERED that
Plaintiff shall compensate Dr. Patel for two hours and eight minutes of deposition
2 To that end, SharkNinja also argues Dr. Patel’s requested rate is “reasonable in
light of the fees of the other M.D.-credentialed medical experts in this case.” Doc. No. 40,
at 4 (noting SharkNinja and Plaintiff agreed to pay $1350 an hour and $1750 an hour,
respectively, for the services of their life care planner experts). SharkNinja provides no
legal support for the conclusion that what a party agrees to pay its own experts in different
contexts has any bearing on what this court should consider a reasonable fee under Rule
26 in this specific context, and the Court has not independently found any such legal
support for that conclusion. The Court thus finds this argument unpersuasive.
testimony at $750.00 per hour for a total of $1687.50 ($750.00 per hour for two hours
and $187.50 for a quarter hour of additional time).
DONE and ORDERED in Orlando, Florida on September 14, 2023.
| ayn □□□□
LESLIE AN PRICE
UNITED STATES MAGISTRATE JUDGE
Copies furnished to:
Counsel of Record
Unrepresented Parties
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