Broushet v. Target Corp.
2011 U.S. Dist. LEXIS 49067
E.D.N.Y2011Background
- Defendant Target moved to set a reasonable fee for expert Dr. Lattuga's deposition and preparation; invoice requested $8,400 ($600/hour for 12 hours of prep) plus two hours for deposition.
- After deposition, Lattuga testified two hours were spent preparing and deposition lasted about 1.5 hours; Defendant filed a follow-up motion seeking $625 total ($250 prep at $125/hr and $375 deposition at $250/hr).
- Plaintiff did not respond to the motions; Court must determine a reasonable fee under Rule 26(b)(4)(C).
- Dr. Lattuga is a board-certified orthopedic spine surgeon serving as treating physician and potential expert; his expert disclosure lists initial exam, imaging, surgery, follow-ups, and prognosis as testimony topics.
- Judge cites applicable fee-recovery factors (expertise, training, prevailing rates, nature/complexity of responses, cost of living, other assistance, and traditional fees) and recognizes the burden on the movant to prove reasonableness.
- Court ultimately awards a total of $1,400 (two hours prep at $400/hour = $800; two hours at deposition at $400/hour = $600).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Reasonable hourly rate for Lattuga | Lattuga's rate of $600/hour is reasonable | Rate should be reduced to $250/hour for deposition and $125/hour for prep | $400/hour is reasonable |
| Preparation vs deposition time billing | Preparation should be billed at the same rate as deposition | Preparation should be billed at a reduced rate | Same $400/hour rate for preparation and deposition |
| Total award and payment | (No argument presented) | (No separate argument beyond rate) | Award of $1,400; payment due within 14 days |
Key Cases Cited
- Magee v. The Paul Revere Life Ins. Co., 172 F.R.D. 627 (E.D.N.Y.1997) (fee-recovery factors; preparation time compensable at same rate as deposition)
- Mathis v. NYNEX, 165 F.R.D. 23 (E.D.N.Y.1996) (rate considerations; limits on applicability of old benchmarks)
- Coleman v. Dydula, 190 F.R.D. 320 (W.D.N.Y.1999) (treating physicians; evaluating deposition-related time)