Wile v. James River Insurance Company

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

JONATHAN B. WILE,

Plaintiff,

v.

17-CV-1275S(Sr)

JAMES RIVER INSURANCE COMPANY,

Defendant.

DECISION AND ORDER

This case was referred to the undersigned by the Hon. William M.

Skretny, pursuant to 28 U.S.C. § 636(b)(1), for all pretrial matters. Dkt. #6.

Plaintiff commenced this action seeking Supplementary

Uninsured/Underinsured Motorist (“SUM”), coverage pursuant to an insurance contract

with the defendant following a motor vehicle accident on June 22, 2014 by summons

and complaint filed in New York State Supreme Court, County of Erie. Dkt. #1. The

matter was removed to this Court pursuant to 28 U.S.C. § 1332(a), based upon

complete diversity of citizenship. Dkt. #1.

Currently before the Court is defendant’s letter motion to compel plaintiff

to reimburse defendant’s expert witnesses, Dr. Gross and Dr. Londin, for reasonable

deposition fees (Dkt. #55), and plaintiff’s motion to: (1) strike defendant’s privilege log

and compel production of the entire SUM file; (2) compel defendant to produce Dr.

Londin in Buffalo for a supplemental deposition; and (3) set reasonable expert

deposition fees. Dkt. #56.

Expert Deposition Fees

Fed. R. Civ. P. 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)(E) provides that

Unless manifest injustice would result, the court must require

that the party seeking discovery: (I) pay the expert a

reasonable fee for time spent in responding to discovery

under Rule 26(b)(4)(A) . . .

The underlying purpose of Rule 26(b)(4)(E) “is to compensate experts for their time spent

participating in litigation and to prevent one party from unfairly obtaining the benefit of the

opposing party's expert's work free from cost." New York v. Solvent Chemical Co., Inc.,

210 F.R.D. 462, 468 (W.D.N.Y. 2002), quoting Goldwater v. Postmaster General, 136

F.R.D. 337, 339 (D.Conn.1991). “In implementing this rule, courts aim to calibrate the fee

so that [parties] will not be hampered in efforts to hire quality experts, while [their

adversaries] will not be burdened by unfairly high fees preventing feasible discovery and

resulting in windfalls to the expert.” Mannarino v. United States, 218 F.R.D. 372, 374

(E.D.N.Y. 2003) (internal quotation omitted); See Windsor Securities, LLC v. Arent Fox

LLP, 2018 WL 4360769, at *1 (S.D.N.Y. Aug. 7, 2018) (court should not approve expert

fees that are so high as to impair a party’s access to necessary discovery) (internal

quotation omitted).

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“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.”

Reit v. Post Props., Inc., No. 09 Civ. 5455, 2010 WL 4537044, at *2 (S.D.N.Y. Nov. 4,

2010). “Courts expect some reasonable relationship between the services rendered and

the renumeration to which an expert is entitled.” Mannarino, 218 F.R.D. at 375 (internal

quotation omitted). Courts consider the following factors in assessing the

reasonableness of a requested fee: (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

geographic 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.

Broushet v. Target Corp., 274 F.R.D. 432, 433 (E.D.N.Y. 2011). The party seeking to be

reimbursed bears the burden of demonstrating that the fee sought is reasonable. Solvent

Chem. Co., 210 F.R.D. at 468.

An “expert certainly should be reimbursed for any time during which he was

unavailable to do other work.” McHale v. Westcott, 893 F. Supp. 143, 151 (N.D.N.Y.

1995). Thus, a party should be required to compensate an opposing party’s expert

witness for the amount of time the expert witness is asked to reserve for the deposition

as well as the amount of time spent preparing for a deposition. Solvent Chem. Co., 210

F.R.D. at 471. However, the Court must be wary that preparation time is focused upon

preparation for the deposition rather than general trial preparation. Nnodimele v. city of

New York, No. 2015 WL 4461008, at *4 (E.D.N.Y. July 21, 2015). Preparation time

comparable in length to that of the deposition itself is generally reasonable. Windsor

Securities, LLC, 2018 WL 4360769, at *1. As a general rule, “courts award the same

per hour fee for preparation as they do for the time being deposed.” Broushet, 274

F.R.D. at 434 (collecting cases and rejecting request to reduce rate for preparation by

half as unsupported by the case law in this circuit); But See Junger v. Singh, 16-CV-

564, 2018 WL 4518648, at *4 (W.D.N.Y. Sept. 20, 2018) (applying method of reducing

fee from in-court/deposition testimony rate to 50% for preparation time). With respect to

travel time, the general rule is that compensation should be half the expert’s hourly rate.

Mannarino, 218 F.R.D. at 377; But See Junger, 2018 WL 4518648, at *4 (applying

method of reducing fee from in-court/deposition testimony rate to 25% for travel time).

Dr. Gross

Elliott Gross, M.D., is a Fellow with the American Academy of Neurology,

a Diplomate with the American Board of Psychiatry and Neurology and an Assistant

Clinical Professor of Neurology at Columbia College of Physicians and Surgeons. Dkt.

#55-4, p.2. Dr. Gross seeks $250 for travel time plus $400 per hour for three hours of

preparation and $650 per hour for three hours of deposition for a total of $3,400. Dkt.

#55-2, p.3.

Defendant argues that Dr. Gross has significant expertise in an area of

medicine where expert witnesses are difficult to retain. Dkt. #55, p.3. Defendant notes

that other experts with similar expertise have even higher rates and that an expert in

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Western New York, John J. Leddy, M.D., was unavailable because he had provided

treatment to plaintiff. Dkt. #55, p.3. For example, Louis N. Mananas, M.D., would have

charged a fee of $3,150 for the first hour and $785 for every additional 15 minutes. Dkt.

#55-5, pp.7-16. Defendant states that it paid Dr. Gross $5,375 for his IME and expert

report and will pay him $8,500 for trial testimony. Dkt. #55, p.3 & Dkt. #55-7, p.5.

Plaintiff objects that Dr. Gross’ fee for travel time is more than half the

hourly rate for preparation and deposition time. Dkt. #56-1, p.7. Plaintiff notes that Dr.

Gross’ fee is several time higher than his usual rate for an independent medical

examination, which he testified at deposition was $760. Dkt. #62-1, ¶ 13. Plaintiff also

objects to using New York City cost of living as a barometer given that Dr. Gross used

to travel to Buffalo monthly. Dkt. #62, p.5.

Balancing the factors and considering the facts set forth above, the Court

finds that $650 per hour is a reasonable hourly rate for Dr. Gross’ deposition testimony.

Cf. Junger, 2018 WL 4518648, at *4 ($500 per hour reasonable for cardiologist from

Richmond, Virginia). Moreover, the Court finds that three hours is a reasonable amount

of time for Dr. Gross’ deposition preparation. Finally, the Court finds Dr. Gross’ travel

charge of $250 to be reasonable. Accordingly, plaintiff shall reimburse defendant

$3,400 in reasonable fees for the cost for Dr. Gross’ deposition testimony.

Dr. Lodin

Victoria Londin, Ph.D., maintains a private neuropsychology practice in

Cross River, New York. Dkt. #55-3, p.2. Dr. Londin seeks $250 for travel time plus

$1,000 per hour for two hours of preparation and three hours of deposition for a total of

$5,250. Dkt.#55-2, p.2.

Defendant argues that Dr. Lodin has significant expertise in an area of

medicine where expert witnesses are difficult to retain. Dkt. #55, p.3. Defendant notes

that other experts with similar expertise have even higher rates. Dkt. #55, p.3. For

example, Richard P. DeBendetto, Ph.D., would have charged a flat fee of $6,500. Dkt.

#55, p.3. & 55-5, pp. 2-5. Defendant states that it paid Dr. Lodin $5,000 for her IME and

expert report and will pay her $7,500 for trial testimony. Dkt. #55, p.3 & Dkt. #55-6, p.5.

Plaintiff objects that Dr. Lodin charges the same hourly rate for

preparation as for time spent in deposition and that her hourly rate is significantly higher

than Dr. Gross’ or comparable local experts . Dkt. #56-1, p.7. Plaintiff proposed to pay

Dr. Lodin for the same amount of hours and at the same rate as Dr. Gross. Dkt. #56-1,

p.8. Plaintiff objects to Dr. Lodin using New York City cost of living as a barometer given

that Dr. Lodin regularly works in Buffalo. Dkt. #62, p.5.

While the Court accepts the amount of time spent by Dr. Londin as

reasonable, the Court concludes that Dr. Lodin’s hourly rate is excessive and, balancing

the factors and considering the facts set forth above, sets $500 as a reasonable hourly

rate. See, e.g, Smith v. New York Presbyterian Hosp., 05Civ. 7729, 2012 WL 4903256,

at *3 (S.D.N.Y. Oct. 12, 2012) (concluding after survey that $350-$400 was reasonable

rate for psychiatrists). Accordingly, plaintiff shall reimburse defendant $2,750.

Supplemental Deposition of Dr. Londin

Plaintiff seeks to compel a supplemental deposition of Dr. Londin at

defendant’s expense because Dr. Londin failed to produce her entire file at her

deposition. Dkt. #56-1, ¶ 2. Specifically, plaintiff seeks Dr. Londin’s contemporaneous

notes of her medical examination of plaintiff and emails relating to plaintiff. Dkt. #56-1,

¶ 48.

By email and first-class mail dated March 20, 2019, plaintiff enclosed

subpoenas for defendant’s expert witnesses and asked if defendant was willing to

accept service. Dkt. #56-9, p.1. The subpoena to Dr. Londin directed her to bring with

her to the deposition her entire file on plaintiff. Dkt. #56-9, p.3. Defendant declares that

it never accepted service of the subpoenas. Dkt. #63, ¶ 13. By email dated January 31,

2020, plaintiff’s counsel reminded defendant to make sure that defendant’s expert

witnesses brought “their hard copy files to their depositions as well as their laptops for

those parts of their files not in hard copy.” Dkt. #56-13, p.1.

At her deposition, Dr. Londin testified that she did not bring her “raw data”

to the deposition, which she defined as the test paper materials that were used to

record plaintiff’s responses and any notes she would have written while she was

interviewing and administering tests to plaintiff. Dkt. #62-3, pp.4-5. Dr. Londin explained

that her notes could potentially contain observational comments and/or hand scoring of

the data. Dkt. #62-3, p.8. Dr. Londin explained that such raw data can only be released

to another psychologist who can understand what the data means. Dkt. #62-3, p.8.

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By letter dated February 10, 2020, plaintiff requested that Dr. Londin

travel to Buffalo for a supplemental deposition with her entire file. Dkt. #56-11, pp.1-2.

By letter dated February 14, 2020, defendant objected to any further

deposition, arguing that Dr. Londin’s personal notes are privileged and could only be

released subject to a duly executed HIPAA compliant authorization by plaintiff and,

even then, her notes could only be released to another psychologist. Dkt. #56-12, p.1.

The Court is aware that the American Psychological Association’s Ethical

Principles of Psychologists and Code of Conduct (“APA Code of Conduct”), requires

psychologists to make reasonable efforts to maintain the integrity and security of test

materials and other assessment techniques. The definition of test materials includes

manuals, instruments, protocols and test questions or stimuli, but does not include test

data, which is defined as raw and scaled scores, client/patient responses to test

questions or stimuli and psychologists’ notes and recordings concerning client/patient

statements and behavior during an examination. www.apa.org/ethics/code/index at 9.04

and 9.11. The APA Code of Conduct specifically recognizes that those portions of test

materials that include client/patient responses are included in the definition of test data

that may be released to the client/patient pursuant to a release. Id. at 9.04. The APA

Code of Conduct also recognizes that in many instances, release of confidential

information is regulated by law, but otherwise acknowledges that psychologists may

refrain from releasing test data to protect a client/patient or others from substantial

harm or to prevent misuse or misrepresentation of the data or the test. Id.

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Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure requires that an

expert witness disclose, inter alia, the facts or data considered by the expert witness in

forming all opinions the witness will express. The Advisory Committee’s notes to the

1993 amendment of Rule 26 of the Federal Rules of Civil Procedure specifically state

that the expert witness disclosure include the data and other information considered by

the expert. Absent release of such materials, “there is no way to check the quality and

accuracy of the [expert] witness’s work.” Bain v. Wrend, No.5:15-cv-202, 2017 WL

11505976, at *2 (D. Vt. Sept. 6, 2017). Accordingly, Dr. Londin shall disclose her raw

data and, if deemed necessary by plaintiff, submit to a supplemental deposition via

videoconference limited to questions related to the raw data, within 60 days of the entry

of this decision. Plaintiff shall pay defendant at the rate set by the Court for her

deposition time, but defendant shall bear the cost of any preparation time.

Privilege Log for SUM file

Plaintiff seeks to strike the defendant’s privilege log and compel

production of defendant’s entire SUM file, or, in the alternative, seeks in camera review

of the documents withheld as privileged. Dkt. #56-1, ¶ 2.

The SUM file produced by defendant on August 24, 2018 was redacted

and accompanied by a privilege log. Dkt. #56-1, ¶¶ 9-10.

By letter dated February 10, 2020, plaintiff argued that the privilege log did

not sufficiently state what the items claimed to be privileged are. Dkt. #56-11, p.1.

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Based upon the deposition testimony of Barbara Jones regarding the content of some

of the documents subject to privilege, plaintiff argued that documents had been

improperly redacted. Dkt. #56-11, p.1. For example, plaintiff argues that records of an

independent medical examination of plaintiff and Ms. Jones’ notes regarding plaintiff’s

claim are not privileged. Dkt. #56-11, p.1.

Rule 26(a)(5)(A) of the Federal Rules of Civil Procedure provides that

whenever a party withholds information otherwise discoverable by claiming that the

information is privileged or subject to protection as trial-preparation material, the party

must: (i) expressly make the claim; and (ii) describe the nature of the documents,

communications, or tangible things not produced or disclosed - and do so in a manner

that, without revealing information itself privileged or protected, will enable other parties

to assess the claim. Local Rule 26(d) provides that where a party asserts a claim of

privilege with respect to documents, the party shall provide the following information: (a)

the type of document, i.e., letter or memorandum; (b) the general subject matter of the

document; (c) the date of the document; and (d) such other information as is sufficient

to identify the document for a subpoena duces tecum, including, where appropriate, the

author of the document, the addresses of the document, and any other recipients

shown in the document, and where not apparent, the relationship of the author,

addresses, and recipients to each other.

In the instant case, defendant’s privilege log indicates that 45 unidentified

and undated documents were redacted because of reserve information, attorney work

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product, opinions or legal theories. Dkt. #56-4. This is insufficient. Moreover, plaintiff did

raise the argument that defendant had improperly withheld a portion of the SUM file on

privilege grounds in his prior motion to compel (Dkt. #35-16, p.5), which the Court

resolved on alternate grounds. Dkt. #50. Accordingly, the Court does not deem the

issue waived and directs that defendant provide a detailed privilege log and any legal

argument that defendant wishes the Court to consider in support of its claim of privilege

to plaintiff and the Court, and provide copies of the documents it seeks to protect from

disclosure for in camera review to the Court within 30 days of the entry of this decision.

SO ORDERED.

DATED: Buffalo, New York

October 9, 2020

s/ H. Kenneth Schroeder, Jr.

H. KENNETH SCHROEDER, JR.

United States Magistrate Judge

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