Alas, A New Jersey State Court Fixes Fees

The case of Jusino v. Lapenta, decided on May 23, 2014, was approved for publication on August 26, 2015.

In the above case, a motor vehicle accident led to a lawsuit where a Board Certified Neurosurgeon treated the Plaintiff and defense counsel wanted his discovery deposition. The expert set his fee at $1,000.00 per hour with a minimum of $3,000.00 plus a $500.00 preparation fee, unless the medical records were excessive and excessive time was required to prepare for the deposition.

Defense counsel refused to pay such fees as exorbitant and filed a Motion requesting that the Court set the deposition fees for this expert.

The Court cited Rule 4:10-2(d)(2) which calls for a “reasonable fee to be paid to experts for deposition testimony.” However, “reasonable fee” has never been defined by New Jersey courts.

The trial judge in Jusino, made reference to “a reasonable fee” to be paid for an expert’s deposition citing F.R.C.P. 26(b)(4)(A). One Federal case out of Connecticut discussed the factors to be considered in determining expert deposition fees:

(1) The witness’s area of expertise;

(2) The education and training that are required to provide the expert the insight that is sought;

(3) The prevailing rates for other respected available experts;

(4) The nature, quality and complexity of the discovery responses provided;

(5) The cost of living in the particular geographical area;

(6) The fee actually being charged by the expert to the party who retained him; and

(7) Fees traditionally charged by the expert on related matters.

Also, the proponent of the witness has the burden of proving reasonableness. “The Court must expect some demonstration of a reasonable relationship between the services rendered and the reimbursement to which an expert is entitled.”

The trial judge in Jusino denied any payment to the expert for preparation for his deposition and denied him the advance payment of a flat fee of $3,000.00 for his discovery deposition. The Jusino judge further ordered that the fee to be paid to the expert should be $750.00 per hour and if the deposition goes into the second hour, another $750.00 must be paid, regardless of the portion of the second hour that is consumed. This formula will equally apply to a third hour. “If the deposition lasts less than an hour, the $750.00 still must be paid.” And finally, the trial judge refused to allow pre-payment of the fee, ruling that the computed fee shall be paid within thirty (30) days of the deposition.

As a published opinion, this case now serves as precedent for other expert deposition fees and their payment. If the expert is a family general practitioner, a chiropractor or a psychologist, the fees for such an expert deposition, in my opinion, should be less than $750.00 per hour using the Board Certified Neurosurgeon fee of $750.00 per hour as a benchmark.

If you wish to have a copy of the Jusino v. Lapenta decision, kindly send me a request via email.

Louis Niedelman, Esquire
Certified by the N.J. Supreme Court as a Civil Trial Attorney
Advocate – American Board of Trial Advocates
Member of Trial Attorneys of New Jersey (TANJ)
Cooper Levenson, Attorneys at Law
1125 Atlantic Avenue
Atlantic City, NJ 08401
Direct Dial: (609) 572-7474
Direct Fax: (609) 572-7475

Date Published: February 12, 2018

Written by: Louis Niedelman

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