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Bak v. Metro-North Railroad Co.

United States District Court, S.D. New York

February 7, 2017

CHAN YOUNG BAK, as administrator of the estate of HYANG JA BAK LEE, deceased, and CHAN YOUNG BAK, individually, Plaintiff,


          Thomas P. Griesa U.S. District Judge.

         Before 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. Berkowitz.


         In 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.

         Mr. 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 from Metro-North).

         Dr. 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.

         On 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.


         The 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).

         The 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.

         I. Hourly Rates

         To 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.

         Both 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).

         Moreover, 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 ...

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