Mendez-Caton v. Caribbean Family Health Center
1:19-cv-01599
E.D.N.YJan 28, 2022Background
- Plaintiffs sued multiple defendants for alleged medical negligence; Dr. Burt Greenberg was Plaintiffs’ retained expert and submitted an initial report dated December 16, 2019.
- Defendants noticed Dr. Greenberg’s deposition for July 28, 2021; parties had an understood practice that the deposing party pays an expert for time spent testifying.
- After the deposition (3.5 hours), Dr. Greenberg produced an amended report based on materials received after his initial report and submitted invoices seeking large sums for preparation and appearance (initial invoice $22,185; later claimed total $40,185).
- Defendants agreed only to split the $1,350 appearance charge but refused to pay the larger preparation invoice, prompting Plaintiffs’ motion to compel fee payment under Rule 26(b)(4)(E).
- The court found much of Greenberg’s billed preparation was initial case- or trial‑level work (including reformulating his opinion) and therefore not compensable, but awarded a reasonable portion: 13.5 hours of preparation at $450/hr plus 1 hour administrative time at half rate, totaling $6,300.
- Defendants’ cross‑motion to reconsider preclusion of Greenberg’s amended report was denied (court previously found no willful misconduct and that prejudice was curable).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Defendants must pay expert fees for time beyond testimony | Plaintiffs: Rule 26 requires deposing party pay reasonable prep time; invoice reflects deposition-related prep | Defendants: Much of the work was trial/case preparation, not compensable under Rule 26(b)(4)(E) | Court: Deponent entitled to reasonable fee, but not for initial/reformulation/trial prep; apportionment required |
| Whether 49.3 billed hours were reasonable deposition prep | Plaintiffs: Hours reasonable given volume of materials and need to prepare; case may not reach trial | Defendants: Hours excessive and primarily initial review of new materials after original report | Court: 49.3 hours unreasonable; reduced to 13.5 compensable prep hours at $450/hr |
| Compensability of conferences between expert and counsel | Plaintiffs: Calls were deposition prep and necessary | Defendants: Many calls were trial prep/preparing counsel, not compensable | Court: Most counsel conferences not compensable; awarded 3.5 hours for calls (including 2.5 hrs of day-before call) |
| Administrative/time incidental expenses (travel/payment logistics) | Plaintiffs: Calls re: payment and logistics were necessary for deposition | Defendants: Administrative tasks not compensable at full rate | Court: Awarded 1 hour at half rate ($225) for administrative tasks |
Key Cases Cited
- Mannarino v. United States, 218 F.R.D. 372 (E.D.N.Y. 2003) (balancing expert‑fee fairness; caution against flat fees)
- Solvent Chem. Co. v. New York, 210 F.R.D. 462 (W.D.N.Y. 2002) (party seeking reimbursement bears burden; court may set reasonable fee)
- Magee v. Paul Revere Life Ins. Co., 172 F.R.D. 627 (E.D.N.Y. 1997) (Rule 26(b)(4)(E) covers reasonable prep time but not time spent preparing the retaining attorney)
- Korabik v. Arcelormittal Plate LLC, 310 F.R.D. 205 (E.D.N.Y. 2015) (court may use discretion to determine reasonable expert fee)
- Feliciano v. County of Suffolk, 246 F.R.D. 134 (E.D.N.Y. 2007) (travel and out‑of‑pocket expenses can be compensable)
- Outley v. City of New York, 837 F.2d 587 (2d Cir. 1988) (preclusion is an extreme sanction)
- Shrader v. CSX Transp., Inc., 70 F.3d 255 (2d Cir. 1995) (standard for reconsideration: overlooked controlling law or facts)