United States District Court, S.D. New York
OPINION AND ORDER
pitman United States Magistrate Judge
an action brought under the Federal Employers Liability Act
in which plaintiff alleges that he sustained injuries when a
chair in his workplace unexpectedly reclined and then whipped
forward. One discovery item that remains to be completed is
defendant CSX Transportation, Inc.'s
("CSX's") deposition of plaintiff's sole
expert, Dr. John K. Houten, a neurosurgeon. At the time this
dispute arose, Dr. Houten lived and worked in Florida, and
the parties disagreed as to who should bear the travel costs
associated with Dr. Houten's deposition. According to the
web site of Brooklyn's Maimonides Medical Center
("Maimonides") in New York, and a press release
issued by Maimonides,  Dr. Houten has been the Director Spinal
Neurosurgery and Neurotrama at Maimonides since September
2016. Accordingly, the dispute concerning the costs
associated with conducting a deposition in Florida is now
moot. The parties still have disagreements regarding Dr.
Houten's hourly rate, whether CSX should be required to
prepay all or part of Dr. Houten's fee for his deposition
and plaintiff's application to videotape Dr. Houten's
Houten's Hourly Rate for Deposition Time
plaintiff seeks an hourly rate of $700 for Dr. Houten's
deposition, he has failed to justify this rate.
26(b)(4)(E) provides that "[u]nless manifest injustice
would result . . . the court shall require that the party
seeking discovery pay the expert a reasonable fee for time
spent in responding to discovery ..." Fed.R.Civ.P.
26(b)(4)(E). When the dispute concerning Dr. Houten's
hourly rate first arose, I issued an Order that set forth the
factors relevant to determining an expert witness'
reasonable hourly rate (See Order, dated Oct. 2,
2015 (D.I. 166) ("October 2 Order") at 3-4).
Because the party retaining the expert bears the burden of
demonstrating the reasonableness of the fee sought by the
expert, my October 2 Order directed plaintiff to
submit an affidavit addressing the factors identified [in the
cases cited above] and justifying the $700 hour rate sought
by Dr. Houten by October 15, 2015. Pending the receipt of
that submission and my ultimate resolution of the dispute,
Dr. Houten's hourly rate is tentatively set at $500/hour.
(October 2 Order at 4). Inexplicably, plaintiff failed to
submit the affidavit he was directed to submit. Rather,
plaintiff submitted an unsworn letter in which he argued that
Dr. Houten's $700 hourly rate is reasonable because
neurosurgeons generally are highly educated and highly paid
and because CSX's experts have requested comparable or
higher rates (D.I. 169 at 4-6). Plaintiff's general
statements are of little help. All physicians are highly
educated and, in comparison to the average income in the
United States, almost all physicians are highly
paid. Further, the fact that plaintiff has not
objected to CSX's experts' hourly rates does not
render them presumptively reasonable or adequate
comparisons. In short, plaintiff has offered nothing to
justify the rate of $700 per hour.
addition, it appears that a rate of $500 per hour is
reasonable. Neurosurgery is notorious for requiring long
hours, with surgeries beginning at 6:00 or 7:00 in the
morning and consultations and other duties continuing into
the afternoon or early evening. If I assume that a
neurosurgeon averages 60 hours per week for 43 weeks a year
(I assume a total of two months vacation and days off) and
earns $500, 000 per year,  the physi cian's hourly rate would
be approximately $193 ($500, 000 h- 2580 hours). In the
alternative, if I assume 40 hours per week for 43 weeks and
an annual salary of $500, 000, the hourly rate is $291. If I
assume 40 hours per week for 43 weeks and an annual salary of
$700, 000, the hourly rate is $407. These examples illustrate
that an hourly rate of $500 is in excess of what is probably
a neurosurgeon's regular hourly rate.
objection to plaintiff's demand that CSX partially
pre-pay Dr. Houten for his deposition time is also sustained.
Plaintiff has not addressed this issue in his papers, and
there is therefore no justification in the record for this
request. To eliminate any uncertainty, I shall order CSX to
pay Dr. Houten's invoice within ten business days of
Video Recording of Dr. Houten's Deposition
has requested permission to video-record CSX's deposition
of Dr. Houten. CSX does not oppose this request, but reserves
the right to object to plaintiff's using the deposition
as an opportunity to conduct a "trial deposition"
that would be used in place of Dr. Houten's live trial
testimony (D.I. 170 at 2-3). Plaintiff indicates that this is
a "non-issue" because he "has made no
application to preserve and perpetuate Dr. Houten's
testimony" (D.I. 171 at ¶ 1). Therefore, without
expressing any opinion on the admissibility of Dr.
Houten's deposition testimony, plaintiff's
application to video record CSX's deposition of Dr.
Houten is granted.
foregoing reasons, CSX's application to fix Dr.
Houten's fee and to set the terms on which Dr. Houten is
to be paid is granted to the extent that Dr. Houten's
hourly rate for deposition and deposition preparation time is
set at $500 per hour and CSX is directed to pay Dr.
Houten's invoice within ten business days of receiving
it. Without expressing any opinion as to the admissibility of
such a recording and without prejudice to any arguments
defendants may raise concerning admissibility,