Opinion
No. 92-CV-1837.
Decided April 12, 1994.
Joseph W. Calabretta, for plaintiff Lana Kirby.
Gregory T. Rossi, for defendant Mirza N. Ahmad, M.D.
Is the hourly fee of $500 for a discovery deposition or an hourly fee of $750 for a discovery video deposition to be charged by a physician as an expert witness reasonable? They are not.
In grappling with this issue in the absence of any Ohio reported decisions, save for some unreported common pleas cases that have cursorily dealt with the problem, this court has simply amplified Civ.R. 26(B)(4)(c), which pertinently states:
Martin Driscoll v. Cleveland Metro. Gen. Hosp. Cuyahoga County C.P. No. 105041, unreported; Cheryl Ola v. Michael Macfee, M.D., Cuyahoga County C.P. No. 152815, unreported; Zimmer v. Parma Community Gen. Hosp., Cuyahoga County C.P. No. 72427, unreported.
"The court may require that the party seeking discovery under subdivision (B)(4)(b) of this rule pay the expert a reasonable fee for time spent in responding to discovery * * *."
The facts are simple. In the case at bar, Sheldon Artz, M.D. ("Artz") has been identified as plaintiff's medical expert. Defendant's counsel requested plaintiff's counsel to inquire of Artz as to dates when he would be available for a discovery deposition. After consulting Artz about his schedule, a specific time and date were set for the deposition to be taken in Artz's office in Beachwood, Ohio. The expert's fee to be charged by Artz is $500 per hour for in-office depositions and $750 per hour for in-office video depositions. Defendant has objected to paying this amount and has moved the court to reduce Artz's expert fee.
In the context of the frequent polemics that occur between the legal and medical professions with reference to medical malpractice, the common perception exists that the recent proliferation of medical malpractice cases somehow is due to the onerous efforts of the lawyers. Without being drawn into that argument, it has been the experience and observation of this court that in all the medical malpractice trials over which it has presided, the ultimate beneficiaries, in an economic sense, are truly the physicians who demand and usually obtain exorbitant compensation for their testimony as expert witnesses. Ordinary checks and balances are nonexistent in medical malpractice cases and the standard appears to be to get whatever the traffic will bear. In too many medical malpractice cases, unfortunately, the Hippocratic Oath has been supplanted by opportunism and greed by those who participate as medical expert witnesses.
The hourly rate of $500 for an in-office deposition or an hourly rate of $750 for an in-office video deposition, at the convenience of Artz after he has presumably arranged his office schedule to accommodate himself, without any significant overhead, is simply unconscionable. What rational basis exists for the disparity of the hourly rate between a written deposition and a visual deposition is incomprehensible to this court. The rates in Cuyahoga County are undoubtedly higher than the rates in Stark County, but certainly not to such an extent. Analyzing Artz's rate, based on a standard forty-hour work week, would produce for Artz $1,040,000 to $1,560,000 yearly. Preposterous.
This court has no doubt that Artz is indeed a well-qualified physician and that he has the qualifications and expertise to testify in this particular case. He certainly must be compensated for his efforts. What charges are made by Artz to his patients in his work environment is of no concern to this court. But when he participates in the justice system as a witness where our citizens seek justice, he must submit to the standards prescribed by Civ.R. 26, which requires that an expert witness is not free to arbitrarily dictate his compensation and burden his adversary with whatever price tag he decrees. The plaintiff having handpicked Artz, the defendant who happens to be of the same profession as Artz, is at the complete mercy of Artz. The defendant, in other words, becomes a hostage who has no leverage whatever to bargain or negotiate a price mutually agreeable to himself and Artz. Such an event can and does have cataclysmic and unwanted results in the justice system and must be discouraged at all costs.
In a recent federal case, the court analyzed the Federal Rule of Civil Procedure that parallels Ohio Civ.R. 26 by eloquently stating:
"* * * the mandate of Rule 26(b)(4)(C) is not that an adverse expert will be paid his heart's desire, but that he will be paid `a reasonable fee.' The ultimate goal must be to calibrate the balance so that a plaintiff will not be unduly hampered in his/her efforts to attract competent experts, while at the same time, an inquiring defendant will not be unfairly burdened by excessive ransoms which produce windfalls for the plaintiff's experts. Anthony v. Abbott Laboratories (D.C.R.I. 1985), 106 F.R.D. 461; Hensley v. Eckerhart, 461 U.S. 424, 430, 103 S.Ct. 1933, 1938, 76 L.Ed.2d 40, 48 (1983)."
This nation, which presently is undergoing a health care crisis, is in the midst of a national debate as to how to cure or solve this long-neglected health problem. This court can only deal with whatever is pending before it. In this case, Artz's hourly rate is astronomical and this court has the duty to strike a balance between the services to be rendered and the remuneration to which an expert is entitled. It will not knowingly sit idly by and permit Artz, or for that matter any other litigant or witness, to undermine the efficacy of the court system. It is absolutely imperative for the courts to impose their powers in the face of such "expert fee-jacking." Acquiescence in or acceptance of such extortionate conduct by the courts simply erodes their effectiveness as treasured beacons in our communities. Courts, by necessity, must remain strong and viable in order to preserve a forum where citizens can avail themselves of the justice contemplated in our constitutional system of government.
Accordingly, the fee to be charged by Artz, whether $500 or $750 per hour for his in-office (video) deposition, is clearly excessive. Artz, having agreed to be an expert witness on behalf of the plaintiff, is to submit to discovery deposition(s) and the plaintiff is to pay Artz the hourly rate of $250 for any and all depositions to be taken by plaintiff of Artz. Such compensation is reasonable and fair.
It is therefore ORDERED that Sheldon Artz, M.D. appear for discovery deposition(s) at his own office at a time to be agreed by him and counsel and that defendant Mirza N. Ahmad, M.D. pay to Sheldon Artz, M.D. the reasonable hourly fee of $250 per hour for any and all discovery depositions taken during the course of this trial.
So ordered.