The Kentucky Injury Lawyer Blog reports that a federal judge in New Jersey held the line on rampant expert fees last week, holding that while neurosurgeons should be able to demand steep prices for their time, $7,000 for two hours is “near to being extortionate.” I like when courts spare us the euphemisms and start throwing around words like extortionate. That’s fun!
The expert, a neurosurgeon in Philadelphia, charges $5,000 for the first hour of deposition and $2,000 for every hour thereafter. Please don’t extrapolate that over the course of a year. Your head will explode.
I have mixed feelings about this issue. I really think we should allow experts to largely charge what they want. If they want to price themselves out of the market because they don’t like to testify all that much, I’m fine with that.
I hate interference with what someone wants to charge if there is a willing buyer on the other side. Alex Rodriguez is not overpaid. He is worth exactly what the Yankees were willing to pay him. For better (usually) or for worse (sometimes), that is your free market economy. Sure it would be a better world if we valued our firefighters and school teachers more than A-Rod’s tip money for his steroid dealer. But the free market economy comes with these byproducts. We knew this when we signed up for this economic system.
But, alas, the A-Rod analogy rings false here because this is misunderstanding between the law and the free market economy. What the expert appears to be doing here is charging one price for providing expert testimony to a party and another for the opposing party to take their deposition. Taken to an extreme, this would grind expert discovery to a halt. You can’t use the legal system to create an artificial value for your time.
A different question involves treating doctors who are not offering expert testimony are a whole different animal. Their fee should be reasonable based on the value of their time. Maybe there should be an “I hate lawyers and litigation” premium, but it should be excessive.
Anyway, back to this pattern, the court held that this neurosurgeon, a treating doctor and retained expert, should charge $600 to the defendants for his deposition and any additional costs should be picked up by the Plaintiffs. I guess this is reasonable. This extrapolates out to $1.2 million a year which is not chump change for those who can’t sing a note or hit an inside fastball.
Ultimately, I think these folks should be able to charge largely what they want. But if you have an outlandishly expensive expert, I’m not sure I should have to pay a billion dollars for her time to depose her. So I think accommodations need to be made there, maybe a cap on what you can charge opposing counsel to take your deposition. But otherwise, if you can charge a zillion dollars an hour, have at it. Oh, and I will cross-examine the heck out of you on that point if you do.