The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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EILEEN GOLDSTEIN,
Plaintiff,
ORDER
-against- 22-CV-0434 (JMW)
CVS ALBANY L.L.C. et. al.,
Defendants.
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A P P E A R A N C E S:
Clifford Douglas Gabel, Esq.
Bergman Bergman Fields & Lamonsoff, LLP
801 S. Broadway
Hicksville, NY 11801
Attorney for Plaintiff
Gary P. Muhlstockm Esq.
Cullen and Dykman LLP
The Omni Building
333 Earle Ovington Blvd, 2nd Floor
Uniondale, NY 11553
Attorney for Defendants CVS Albany, L.L.C. and CVS Pharmacy, Inc.
WICKS, Magistrate Judge:
Before the Court is Plaintiff Eileen Goldstein’s motion to compel the deposition of
Defendants CVS Albany, L.L.C.’s and CVS Pharmacy, Inc.’s (“Defendants”) oral and
maxillofacial surgery expert, Dr. Kenneth A. Paticoff to appear for a deposition and set a
reasonable compensation rate (ECF No. 26). Defendants oppose that portion of the application
as to the amount of the fee Plaintiff seeks to set (ECF No. 27). Defendants do not oppose an
Order directing Dr. Paticoff to appear for his deposition. (Id.); see also Fed. R. Civ. P. 26(b)(4).
(providing that “[a] party may depose any person who has been identified as an expert whose
opinions may be presented at trial”). And, Dr. Paticoff has indeed already been identified as an
expert. (ECF No. 26 at 1.)
As to the expert fees, the burden of demonstrating that the fee sought is reasonable rests
squarely with the party seeking to be reimbursed – here, Defendants. See New York v. Solvent
Chem. Co., 210 F.R.D. 462, 468 (W.D.N.Y. 2002); see also Marin v. United States, No. 06-cv-
552 (SHS), 2008 WL 5351935, at *1 (S.D.N.Y. Dec. 22, 2008) (collecting cases). If Defendants
in this case fail to meet their burden of demonstrating reasonableness of the fee, then “the court
may use its discretion to determine a reasonable fee.” New York v. Solvent Chem. Co., 210
F.R.D. at 468. Simply because a party has chosen an expert of its choice bearing a high price
tag, that does not necessarily follow that the chosen expert’s self-described fee is reasonable.
See Reit v. Post Props., Inc., No. 09-cv-5455 (RMB) (KNF), 2010 WL 4537044, at *2 (S.D.N.Y.
Nov. 4, 2010) (“While a party may contract with any expert it chooses, the court will not
automatically tax the opposing party with any unreasonable fees charged by the expert.”).
In addition, generally “hours that an expert spends on preparation and travel in
connection with the expert’s deposition are compensable under Rule 26(b)(4)(E).” Nnodimele v.
City of New York, No. 13-CV-3461 (ARR), 2015 U.S. Dist. LEXIS 94889, at *4 (E.D.N.Y. July
21, 2015); see also Fed. R. Civ. P. 26(b)(4)(E) (requiring the party seeking discovery to pay the
expert a reasonable fee for time spent responding to discovery and pay the other party a fair
portion for fees and expenses reasonably incurred in obtaining the expert’s facts and opinions).
However, fees with regard to preparation time should be applied with caution since that time
may include general trial preparation work. Nnodimele, 2015 U.S. Dist. LEXIS 94889 at *4
(collecting cases which reduced compensation for hours of preparation to account for deposition
preparation only). Courts have allowed the same rate to be charged for preparation and
deposition time if the expert charges the same rate for those activities. Packer v. SN Servicing
Corp., 243 F.R.D. 39, 43 (D. Conn. 2007). However, preparation time can be compensated at a
lower rate than the time actually spent at the deposition. See 6 James Wm. Moore, et al.,
Moore’s Federal Practice § 26.80[3] (2023) (collecting cases).
Dr. Paticoff originally requested $4,000 for the deposition for a minimum of two hours
plus a $750 hourly rate for preparation time. (ECF No. 26 at 1.) After Plaintiff stated that these
fees were excessive, Dr. Paticoff reduced the fee from $4,000 to $2,500 for up to two hours and a
$750 hourly preparation fee. (Id.) Plaintiff offered to pay $500 per hour—the same rate charged
by her own medical expert, whose deposition lasted less than two hours—however Dr. Paticoff
would not reduce his fee any further. (Id.)
Defendants offer little in the way of guidance or support as to the reasonableness of the
$2,500 rate for up to two hours and a $750 hourly fee for preparation time (ECF No. 27 at 1).
Instead, Defendants attempt to justify this rate by stating that Dr. Paticoff is charging his own
client $8,000 for trial testimony so the requested fee of $2,500 should be considered “fair and
reasonable.” (Id.) In addition, they cite to three other dentists in the field who charge anywhere
from $3,000 to $6,500 for deposition or trial testimony. (Id.) Defendants also defend Dr.
Paticoff’s exorbitant preparation rate stating that a great deal of preparation is required for a
deposition. 1 (Id.)
When a Court is presented with an application to determine the reasonableness of the
proposed fee, guidance is sought from the following factors:
1 Defendants argue that a preparation fee should be higher than the cost of a medical consultation. (ECF
No. 27 at 1.) However, Plaintiff did not argue this in her motion—rather Plaintiff believes that the hourly
rates for Dr. Paticoff’s deposition and the preparation rate is excessive. (See ECF No. 26).
“(1) the witness’s area of expertise; (2) the education and training that is required to
provide the expert insight that is sought; (3) the prevailing rates for other comparably
respected available experts; (4) the nature, quality and complexity of the discovery
responses provided; (5) the cost of living in the particular geographical area; (6) any other
factor likely to be of assistance to the court in balancing the interests implicated by Rule
26; (7) the fee being charged by the expert to the party who retained him; and (8) fees
traditionally charged by the expert on related matters”. Korabik v. Arcelormittal Plate
LLC, 310 F.R.D. 205, 206 (E.D.N.Y. 2015) (citation omitted). “None of the foregoing
factors have talismanic qualities. Instead, they provide a guide for the Court to utilize.”
Magee v. The Paul Revere Life Ins. Co., 172 F.R.D. 627, 645 (E.D.N.Y.1997).
Heiser v. Collorafi, No. 14-CV-464, 2016 WL 1559592 (N.D.N.Y. Apr. 18, 2016).
Reviewing what other courts within this Circuit have held provides some guidance.
Because there is very scant information as to what other oral and maxillofacial surgeons charge
for appearing at and preparing for a deposition, the undersigned looks to the rates of other
surgeons and doctors. Relevant authority appears to conclude that a rate of between $400 and
$500 per hour is reasonable for a doctor or surgeon testifying at a deposition. See Avila v. Target
Corp., No. 21-cv-907, 2022 U.S. Dist. LEXIS 215966, at *4 (E.D.N.Y. Nov. 30, 2022) (holding
that a reasonable hourly fee for a deposition of an orthopedic surgeon is $500 an hour); Souvenir
v. Jordan, No. 20-CV-9335 (CS), 2022 WL 12399329 (S.D.N.Y. Oct. 21, 2022) ($450 per hour
reasonable for board-certified orthopedic surgeon retained by plaintiff as expert); Korabik v.
Arcelormittal Plate LLC, 310 F.R.D.205, 208 (E.D.N.Y, 2015) (seven years ago, “[i]n this
district, ‘expert orthopedic surgeons consistently have been awarded $400 per hour,’” but court
awarded $475 per hour); Reit v. Post Props., No. 09-cv-5455, 2010 U.S. Dist. LEXIS 119693, at
*28-29 (S.D.N.Y. Nov. 4, 2010) (finding $400 an hour to be a reasonable fee per hour for a
neurologist’s deposition and preparation); Muoio v. Zubowski, No. 1-cv-9556, 2003 U.S. Dist.
LEXIS 6246, at *1 (S.D.N.Y. Apr. 15, 2003) (holding an expert plastic surgeon was entitled to a
$400 per hour fee).
Here, Defendants’ expert offers a rate per hour that is twice the rate acceptable in this
District. The preparation rate per hour also exceeds the deposition hourly rate typically awarded
in this District. See Sterisil, Inc. v. ProEdge Dental Prods., No. 13-cv-01210 (REB), 2019 U.S.
Dist. LEXIS 54240, at *7-9 (D. Colo. Mar. 29, 2019) (reducing preparation hours awarded and
the hourly rate for the deposition since plaintiff had not shown that additional hours or a higher
hourly fee was reasonable). Defendants have not stated how long the preparation will take;
however, courts typically award experts fees for preparation consistent with the deposition
itself—therefore, if the deposition ran for two hours, then the preparation fees awarded will be
for two hours.
Even if the above comparable rates should not be considered for an oral and maxillofacial
expert, there is more than enough support to reduce Dr. Paticoff’s rate. Indeed, the testimony is
not complex and would appear to cover the same or similar ground that Plaintiff’s expert has
covered—to which Defendants do not dispute. (See ECF No. 27.) Further, Plaintiff’s expert
who charged $500 per hour has almost equal qualifications as Dr. Paticoff and should therefore
be subject to the same rate. (See ECF Nos. 26-1 and 26-2.)
Accordingly, considering the record presented here, the Court in its discretion sets a
reasonable fee.2 The rate for Dr. Paticoff’s deposition shall be reduced to $500 per hour. As for
2 The undersigned is aware of other courts in this District state that parties should seek fees for an expert
deposition “retrospectively.” However, in those cases, the courts were faced with the dilemma of having
little to no information to assess the reasonableness of the requested fee under the relevant factors. See
Hobson v. Kemper Indep. Ins. Co., No. 20-CV-00812 (JCH), 2021 U.S. Dist. LEXIS 99489, at *9 (D.
Conn. May 26, 2021) (noting that defendant’s response is “completely devoid of either factual
information or case law”…to “enable the Court to assess the reasonableness” of the deponent’s requested
fee); Conte v. Newsday, Inc., No. 06-CV-4859 (JFB) (ETB), 2011 U.S. Dist. LEXIS 88546, at *7-8
(E.D.N.Y. Aug. 10, 2011) (stating that parties made “no attempt…to justify the experts’ apparent hourly
rate of $350.00”). In contrast, here, Plaintiff—not Defendants—have provided Dr. Paticoff’s credentials
in comparison to their own expert’s, Dr. Proothi so the Court is able to assess the rationale behind the
proposed fee. (See ECF No. 26-1 and 26-2.)
the preparation time fee, the Court adopts the method used in Packer and awards preparation fees
which are not to exceed the duration of the deposition itself and cuts the preparation hourly rate.
See Packer, 243 F.R.D. at 43; see also Nnodimele v. City of New York, 2015 U.S. Dist. LEXIS at
*14-15 (limiting awarded preparation time hours from fourteen hours to ten hours because they
were excessive given the expert’s experience, his prior experience testifying, and the case’s lack
of complexity); Handi-Craft Co. v. Action Trading, S.A., No. 02-CV-1731 (LMB), 2003 U.S.
Dist. LEXIS 28263, at *50-51 (E.D. Mo. Nov. 25, 2003) (recognizing the complexity of the case
yet still lowering preparation time fees to two days because three days was “excessive”). The
Court reduces the hourly rate by approximately 1.5 times of the adopted deposition rate of $500,
reducing the preparation hourly rate from $750 an hour to $350 an hour.3
CONCLUSION
Based upon the foregoing, Plaintiff’s motion to direct Dr. Paticoff to appear for his
deposition is granted, and the fee for the deposition is set at $500 per hour and the preparation
fee is set at $350 per hour, not to exceed the hours of the deposition itself.
Dated: Central Islip, New York
October 25, 2023
S O O R D E R E D:
James M. Wicks
/S/
JAMES M. WICKS
United States Magistrate Judge
3 The Court makes such a reduction as this is an approximate multiplier that Dr. Paticoff used with regard
to his own hourly deposition rate and hourly preparation rate.