Memorandum Supporting Motion for Order Governing Expert Witnesses and Opposing Defendants' Proposed Order

    v p 

Cv89-0360977S 

  

MILO SHEFF, et al. SUPERIOR COURT 

Plaintiffs 

Vv. JUDICIAL DISTRICT OF 

HARTFORD/NEW BRITAIN 

WILLIAM A. O'NEILL, et al. AT HARTFORD 

Defendants APRIL 1, 1992 

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MEMORANDUM IN SUPPORT OF PLAINTIFFS’ MOTION FOR ORDER GOVERNING 
DEPOSITIONS OF EXPERT WITNESSES, AND IN OPPOSITION 

TO DEFENDANTS’ PROPOSED ORDER 

  

  

  

The Pretrial Order submitted to this Court on March 13, 1992 

grants the parties the right, pursuant to Practice Book 

§220(A) (2) to take depositions of expert witnesses anticipated to 

testify at trial. The Pretrial Order does not, however, provide 

for procedures regarding payment of expert witnesses pursuant to 

Practice Book §220(C). Instead, paragraph 5 of the order 

provides that “[tlhe terms and conditions under which these 

depositions will be taken shall be established by agreement of 

the parties, or by order of the Court if the parties cannot 

agree.” 

At the present time, after good faith but unsuccessful 

efforts to negotiate a stipulation, the parties are submitting 

  

 



      

competing proposed orders governing payment of expert 

depositions. The remaining areas of dispute include the 

following points: 

a. Defendants’ proposed order, submitted on March 19, 1992, 
does not provide for contemporaneous payment of expert 
witnesses on or close to the time of their depositions. 

b. Defendants’ proposed order does not provide adequate 
deposition preparation time for experts. 

c. Defendants’ proposed order does not provide adequate 
compensation for experts at their regular hourly rates. 

The parties are in agreement on the principles that outside 

expert witnesses must be paid for their deposition time, and that 

Department of Education employees identified as experts are not 

entitled to be paid. The parties have also reached agreement on 

the procedure for location of depositions, and the procedure for 

payment of expenses, if any. These areas of agreement are 

reflected in paragraphs 1, 2, and 6 of plaintiffs’ and 

defendants’ proposed orders. Plaintiffs will now address the 

areas in dispute. 

Practice Book §220(C) requires that “the court shall require 

that the party seeking discovery pay the expert a reasonable fee 

for time spent in responding to discovery” and that in addition, 

the Court may require payment of “a fair portion of the fees and 

expenses reasonably incurred...in obtaining facts and opinions 

from the expert.” Plaintiffs have found little Connecticut 

caselaw construing this provision. See, e.q., Falvey’'s Inc. v. 
  

  

  

 



      

Republic Oil, Co., 3. CSCR 931, 933 (Superior Court .1988) 
  

("reasonable fee” for expert deposition). However, the 

Connecticut rule is based on identical language in Rule 26(b) (4), 

Federal Rules of Civil Procedure, and in construing the discovery 

provisions of the Connecticut Practice book, Connecticut courts 

generally look to federal caselaw interpreting similar provisions 

under the Federal Rules. See Gotler wv. Aetna Life & Casualty 
  

GO., 4 Conn. L. Rptr. 518, 519 (Superior Court, 1991). (“Rule 36 
  

of the Federal Rules of Civil Procedure is helpful since our rule 

Of practice is borrowed from it.”); Falvev’s, Inc. vv. Republic 
  

Qil Co., supra. See, generally, Moller and Horton, Connecticut 
      

Practice Annotated at 393-4, 397, 398 (1989), and cases cited   

therein. 

For the reasons set out below, under standards established 

by federal caselaw, defendants’ proposed order does not provide 

adequate compensation for plaintiffs’ experts, and should not be 

adopted. 

1. Plaintiffs are entitled to contemporaneous payment for 

expert depositions 
  

  

Defendants’ proposed order would pay plaintiffs’ experts 

for their time long after their depositions have taken place, up 

to three months after the conclusion of trial. Although 

plaintiffs understand defendants’ desire to delay payment, there 

is no legal basis for defendants’ position, and plaintiffs’ 

experts should be paid at or near the time of the deposition. In 

  

  

  

 



      

fact, some cases have even required payment of expert deposition 

fees and expenses prior to taking of the expert deposition. In 

an analogous situation, in In re "Agent Orange” Product Liability 
  

Lirigation, 105 PF.R.D. 577, 582 (EF.D.N.Y. 1983), the court 
  

required payment of fees in advance, at the expert’s normal rate, 

for attendance at the expert's deposition. Likewise, the court 

in Wright v. Jeep Corp., 547 ¥.Supp. 871, 877 (E.D. Mich. 1982), 
  

held that defendant was not entitled to the benefit of a vehicle 

crash expert's research without advancing a reasonable fee. 

  

  

2. Plaintiffs’ experts are entitled to payment for a 

reasonable amount of preparation in advance of their 

deposition. 
  

Defendants’ proposed order provides compensation for 

only 2 hours of preparation for each deposition. There is no 

dispute between the parties regarding the obligation to pay for 

deposition preparation time, see, e.g., American Steel Products 
  

  

Corp. v. Penn Cent. COorp., 110 FP.R.D, 151, 153 (S.D.N.Y. 1986); 

Carter-Walilasce, Inc. v. Hartz Mountain Industries, Inc., 553 
  

P.Supp. 45,. 53 (S.D.N.¥. 1982); United States vv. Citv of Twin 
  

Falls, Idaho, 806 F.2d 862, 873-879 (9th Cir. 1986). However, 
  

defendants’ proposed 2-hour limit is unsupported by the caselaw, 

which clearly requires payment of a “reasonable” fee. See Hurst   

v. United States, 123 F.R.D. 319, 321 (D. S.D. 1988); Carter-   

Wallace, Inc. v. Hartz Mountain Industries, supra. In a case 
  

such as this, two hours is clearly not sufficient time to 

  

 



      

adequately prepare for a complex deposition lasting a minimum of 

3-8 hours. 

3. Plaintiffs!’ experts are entitled to be compensated at 

their reqular hourly rate 
  

  

The most problematic aspect of defendants’ proposed 

order is their attempt, in paragraph 3, to avoid payment of 

plaintiffs’ experts at their regular hourly rate. Defendants’ 

proposal would limit payment to the hourly rate actually being 

paid by the party engaging the expert, rather than the expert's 

regular hourly or daily rate. This is inconsistent with Practice 

Book §220 and with caselaw construing the identical language of 

Federal Rule 26(b) (4). 

There 1s no dispute that experts are entitled to 

"reasonable fees” as set out in Practice Book §220. See, €.9., 
  

In re “Agent Orange” Product Liability Litigation, supra; Hurst, 
  

  
  

  

supra. See also 8 Wright and Miller, Federal Practice and 

Procedure, §2034. The only dispute in this case is as to what 

fee is “reasonable.” In Goldwater v. Postmaster General of the 
  

United Secates, 136 PFP.R.D. 337, 339-49 (D. Conn. 1991), the 
  

federal court considered several factors. It looked at the area 

of the witness's expertise, the education and training required 

to provide the expert insight, the prevailing rates of other 

comparably respected available experts, the nature, quality, and 

complexity of discovery responses provided and the cost of living 

  
 



      

in the particular geographic area. (In Goldwater, the expert's 
  

fee was ultimate reduced from $450 per hour to $200 per hour.) 

In the Proposed Order, plaintiffs propose that each 

party submit the anticipated hourly rates for various experts in 

advance, and if any party objects to a particular rate, the 

proposed order sets out a procedure for such objection. 

Furthermore, because most of the experts identified in Sheff are 

in similar fields, plaintiffs do not anticipate wide variations 

in hourly rates. 

The purpose of the rule requiring payment for expert 

depositions is “to avoid the unfairness of requiring one party to 

provide expensive discovery for another party’s benefit without 

reimbursement.” United States v. Citv of Twin Falls, Idaho, 806 
  

F.2d 862, 879 (9th Cir. 1986), citing Moore's Federal Practice 
  

126.66[5](2d ed. 1984). In the present case, it is possible that 

plaintiffs might be paying varying rates to different experts. 

It is also possible that, in some instances, the rate of payment 

is determined on some basis other than hourly rate, or that 

certain plaintiffs’ experts may be working at a rate less than 

their regular hourly rate. In these circumstances, defendants’ 

proposal would make the calculation of hourly rates difficult, if 

not impossible. As submitted, defendants’ proposal could also 

force plaintiffs to bear the cost of defendants’ expert 

discovery, in contravention of Practice Book §220. See 4 Moore's 

  
 



      

Federal Practice §26.66({5]) fn. 5. ("There is no justification for 

providing the discovering party with the information at the 

opposing party's expense.”) For these reasons, it would be 

improper to base the determination of an expert’s hourly rate for 

a deposition on the amount received for other research and 

testimony in the case. 

Conclusion 
  

For all of the foregoing reasons, plaintiffs’ proposed Order 

Governing Depositions of Expert Witnesses should be entered by 

the Court. 

Respectfully Submitted, 

ON THE BRIEF: y 24 TZ 
Barbara O'Connell, Philip D. Tegeler 
Law Student Intern Martha Stone 

Connecticut Civil Liberties 
Union Foundation 

32 Grand Street 
Hartford, CT 06106 

  

Wesley W. Horton Ronald L. Ellis 
Kimberly A. Knox Julius L. Chambers 
Moller, Horton; & Rice Marianne Engelman Lado 
90 Gillett Street NAACP Legal Defense & 
Hartford, C7 06105 Educational Fund, Inc. 

99 Hudson Street 

New York, NY 10013 

John Brittain Wilfred Rodriguez 
University of Connecticut Hispanic Advocacy Project 

School of Law Neighborhood Legal Services 
65 Elizabeth Street 1229 Albany Avenue 
Hartford, C7 06105 Hartford, CT 06112 

  
 



      

ERE 

Helen Hershkoff Ruben Franco 
John A. Powell Jenny Rivera 
Adam S. Cohen Puerto Rican Legal Defense 
American Civil Liberties and Education Fund 

Union Foundation 99 Hudson Street 

132 West 43rd Street New York, NY 10013 
New York, NY 10036 

CERTIFICATE OF SERVICE 
  

This is to certify that one copy of the foregoing has been 

mailed postage prepaid to John R. Whelan, Assistant Attorney 

General, MacKenzie Hall, 110 Sherman Street, Hartford, CT 06105 

5? 
this / day of April, 1992 

V/A aN 
  

Philip D. Tegeler