Combating the Ever Increasing Costs of Experts in Litigation

As the cost of litigation continues to rise, especially the costs associated with retained experts, it becomes more and more imperative to use all means available to limit the costs attributable to your clients whenever possible.  If you have been involved in litigation for any length of time, either representing defendants or plaintiffs, it is likely you have had opposing counsel point to the ever increasing costs of the experts you will be required to retain throughout the litigation.  It is more likely still that opposing counsel has threatened to require reports from each expert and depose the experts, continuing to increase the costs of litigation that you or your client will be forced to cover.  Many times these tactics are used to force early settlement by clients or firms that are unable front the costs associated with retained experts in litigation.  When you are confronted with these situations, you and your clients will be well served by Florida Rules of Civil Procedure 1.280 and 1.390.  These rules, along with applicable case law, can be used to require the party deposing your expert to pay the estimated costs associated with the expert’s deposition prior to the deposition itself.

Florida Rule of Civil Procedure 1.390(a) defines an expert witness as a, “person duly and regularly engaged in the practice of a profession who holds a professional degree from a university or college and has had special professional training and experience, or one possessed of special knowledge or skill about the subject upon which called to testify.”  Subdivision c of the rule provides,

An expert or skilled witness whose deposition is taken shall be allowed a witness fee in such reasonable amount as the court may determine.  The court shall also determine a reasonable time within which payment must be made, if the deponent and party cannot agree.  All parties and the deponent shall be served with notice of any hearing to determine the fee.  Any reasonable fee paid to an expert or skilled witness may be taxed as costs.

Rule 1.280(b)(4) addresses the disclosure of expected experts and subsection 1.280(b)(4)(A) provides that the court may control pretrial depositions of experts pursuant to subsection 1.280(B)(4)(C) of the rule.  Subsection C states,

Unless manifest injustice would result, the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under subdivisions (b)(4)(A) and (b)(4)(B) of this rule; and concerning discovery from an expert obtained under subdivision (b)(4)(A) of this rule the court may require the party seeking discovery to pay the other party a fair part of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert.

The Fourth District Court of Appeals noted that the two rules mesh to provide a procedure to determine and obtain the amount one party must pay to the other party for the deposition of the later party’s expert.  Pevsner, M.D., v. Frederick, 656 So. 2d 262, 265 (Fla. 4th DCA 1995).  In Pevsner, M.D., the court stated, “the rules’ framework centers around the designating party’s responsibility and control of the expert, with the provisions for the opposing party to pay for the expert’s time in pretrial depositions.”  Id.  Additionally, when requesting the court to require the opposing party to pay for the fees associated with your expert’s deposition, you may request the court include the time the expert prepared for the deposition in the associated fees.  In the recent decision of Winter Park Imports, Inc., v. JM Family Enterprises, Inc. 2011 WL 6439104 (Fla. App, 4 Dist.), the court stated,

Neither the Guidelines nor rule 1.390(c) specifies the factors that a trial court may consider when determining a reasonable fee for deposition or trial testimony.  However, given the broad discretion granted to the trial court, we conclude that a court is not precluded from considering the time an expert expended in preparing for deposition, including the time reasonably and necessarily spent when conferring with counsel and in formulating his or her expert opinion through examination, investigation, testing, and/or research.

Id at 3.  Finally, in a case on appeal from a County Court order requiring an insurer to pay an expert witness fee before deposing a physician, the court affirmed the County Court’s order as to the requirement to pay the expert’s deposition fee in advance of his deposition.  Comprehensive Health Center v. United Automobile Insurance Company, 2011 WL 2848667 (Fla. App 3 Dist.).

Accordingly, when you are being threatened with ever increasing costs of expert discovery, you may find relief for your firm and or your client through the use of the aforementioned rules and associated cases.  If you are unable to reach an agreement with opposing counsel as to the anticipated cost of an expert deposition and or the amount of money to be provided in advance of the deposition, you may seek court intervention through the filing of a motion for protective order.  Florida Rule of Civil Procedure 1.280(C) provides in pertinent part, “Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending may make any order to protect a party or person from annoyance, embarrassment, oppression, or under burden or expense that justice requires, … .”  Emphasis added.   Finally, the rule also notes that the provisions of rule 1.380(a)(4) apply to the award of expenses incurred in relation to the motion.  Rule 1.380(a)(4) states in pertinent part,

If the motion is granted and after opportunity for hearing, the court shall require the party or deponent whose conduct necessitated the motion or the party or counsel advising the conduct to pat to the moving party the reasonable expenses incurred in obtaining the order that may include attorneys’ fees, unless the court finds that the movant failed to certify in the motion that a good faith effort was made to obtain the discovery without court action, that the opposition to the motion was justified, or that other circumstances make an award of expenses unjust.

When faced with the possibility of rapidly increasing costs related to expert discovery, first attempt to obtain the expected costs from opposing counsel.  In the event opposing counsel refuses to provide prepayment for the deposition of your expert or refuses to provide an acceptable amount, employ the steps outlined above and you can reverse the pressure being exerted by the opposing party and bring the same to bare on them.