United States District Court, S.D. New York
CHAN YOUNG BAK, as administrator of the estate of HYANG JA BAK LEE, deceased, and CHAN YOUNG BAK, individually, Plaintiff,
METRO-NORTH RAILROAD COMPANY, FUSCO MANAGEMENT COMPANY, LLC, ABM INDUSTRIES INC. d/b/a ABM/ACSS SECURITY d/b/a AMERICAN COMMERCIAL SECURITY SERVICES, and TAMS CONSULTANT, INC. et al., Defendants.
P. Griesa U.S. District Judge.
the court is plaintiff Bak-Lee's motion pursuant to
Federal Rule of Civil Procedure 26(b) seeking an order from
the court determining reasonable fees and expenses in
connection with the depositions of plaintiffs expert
witnesses Mr. Victor Serby and Dr. Carl M. Berkowitz. Those
reasonable fees are to be paid by defendants Metro-North
Railroad Company ("Metro-North"), TAMS Consulting,
Inc. ("TAMS"), Fusco Management Company, LLC
("Fusco"), and ABM Industries, Inc.
("ABM") in accordance with the court's November
3, 2016 order. Plaintiff asks the court to order defendants
to pay fees of $3, 023.50 to Mr. Serby and $7, 999.70 to Dr.
preparation for trial, plaintiff retained Mr. Serby and Dr.
Berkowitz as expert witnesses. Mr. Serby and Dr. Berkowitz
were deposed by defendants on October 3, 2014 and November
25, 2014, respectively.
Serby is a licensed professional engineer and a board
certified forensic examiner who plaintiff retained to inspect
the Metro-North train station in Bridgeport, Connecticut to
investigate the cause of the accident at issue in this
litigation. In his affidavit, Mr. Serby states that he spent
the following time in conjunction with his deposition: four
hours of preparation, three hours and fifty-five minutes
being deposed, and three hours and fifteen minutes commuting.
Mr. Serby generally charges $375 per hour for his
professional engineering work, which he states is the
standard rate for his line of work. Mr. Serby's final fee
for his deposition was $3, 023.50: $3, 000 for his time and
$23.50 for travel expenses. Mr. Serby claims that since his
deposition, he has spent an additional twelve hours
attempting to collect his fees. To date, Mr. Serby has been
paid $1, 511.76 by defendants ($755.88 from TAMS and $755.88
Berkowitz is a licensed professional engineer in New York
State working in transportation, safety, and traffic
engineering, with a focus on the safe movement of people.
Plaintiff retained Dr. Berkowitz to assess the safety
precautions taken at the Bridgeport Connecticut Metro-North
Station. In his affidavit, Dr. Berkowitz says he spent the
following time in connection with his deposition: thirteen
hours and twenty-seven minutes preparing, one hour and
thirteen minutes waiting for his deposition to start, four
hours and nine minutes being deposed, and six and a half
hours commuting. Dr. Berkowitz states that his billing rate
at the time of his deposition was $360 per hour, which he
says is reasonable and typical of those with his expertise
and experience. Dr. Berkowitz charged $7, 999.70 in
connection with his deposition. As of November 23, 2016, Dr.
Berkowitz had not been paid by defendants.
August 10, 2016, plaintiff filed a motion with the court
seeking an order compelling defendants to pay Mr. Serby and
Dr. Berkowitz's deposition fees. On November 3, 2016, the
court ordered defendants to pay reasonable fees to both Mr.
Serby and Dr. Berkowitz for their depositions. In the event
the parties could not agree to reasonable fees for Mr. Serby
and Dr. Berkowitz, the parties were ordered to provide the
court with further information allowing the court to
determine reasonable fees for each expert. On November 23,
2016, Plaintiff provided the court with affidavits from Mr.
Serby and Dr. Berkowitz and their curricula vitae. Defendants
have not objected to the reasonableness of the fees requested
or provided any information pertaining to the reasonableness
of the expert fees.
party that deposes an expert whose opinions may be presented
at trial is required to pay a reasonable fee to compensate
the expert for time spent in conjunction with the deposition.
Fed.R.Civ.P. 26(b)(4)(E) ("Unless 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."). Courts have discretion to
determine reasonable fees based on the circumstances of a
particular case, particularly if the parties do not provide
much support for their requests. New York v. Solvent
Chem. Co., 210 F.R.D. 462, 468 (W.D.N.Y. 2002).
party seeking reimbursement of experts' deposition fees
bears the burden of proving that those fees are reasonable.
Id. Here, plaintiff asserts that the fees requested
by Mr. Serby and Dr. Berkowitz are reasonable. Defendants
have not objected to the fees submitted by either expert.
determine a reasonable rate for experts, the court considers
the factors set forth in Broushet v. Target Corp.,
274 F.R.D. 432 (E.D.N.Y. 2011): (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. Id. at 433.
Mr. Serby and Dr. Berkowitz are experienced licensed
engineers with many years of experience and strong
credentials. Although plaintiff provided little information
about the prevailing rates charged by engineers in this
context other than the experts' own affidavits, $360 to
$375 seems to be within the range of reasonable hourly rates
for engineers. Burdette v. Steadfast Commons II,
LLC, 2012 WL 3762515, at *5-6 (W.D. Wash. Aug. 29, 2012)
(finding $450 per hour to be a reasonable rate for a
mechanical engineer); Jochims v. Isuzu Motors, Ltd.,
141 F.R.D. 493, 497 (S.D. Iowa 1992) (finding $250 per hour
to be a reasonable rate for an associate professor of
mechanical and aerospace engineering 22 years ago).
the fact that both experts billed at similar rates indicates
the rate is reasonable for experts in the engineering field.
See Adams v. Mem'l Sloan Kettering Cancer Ctr.,
No. 00 Civ. 9377, 2002 WL 1401979, at *2 (S.D.N.Y. June 28,
2002) (determining reasonable fees based on the only example
provided: that of the opposing parties' expert). Mr.
Serby and Dr. Berkowitz stated in their affidavits that they
charged plaintiff the same hourly rate as they charged
defendants for the deposition. They also bill at that rate
normally, indicating the rate is typical and reasonable.
See E.E.O.C. v. Johnson & Higgins,
Inc., No. 93 Civ. 5481, 1999 WL 32909, at *5 ...