The rising cost of discovery from expert witnesses: problems and solutions.

• Author: Truitt, Curtright C.

Expert witnesses have long been an integral part of litigation, and the topics upon which they are called to testify are numerous and varied. Illustrative is a recent monthly issue of Florida Jury Verdict Report, 20 FJVR 7, which lists over 200 experts. Our rules of civil procedure and evidence encourage the use of experts, as well as provide for their entitlement to reasonable compensation.(1) With more and more experts or "professionals" being involved in the litigation process, the necessity for discovery directed to these witnesses has increased considerably. As stated in a recent medical/legal journal, "[P]ayment for expert witnesses services, in general, is a somewhat taboo subject, ... almost nothing has been written about billing practices for these types of services ... at this time, there is no generally agreed upon set of criteria for what constitutes inefficient, unfair or excessive billing."(2)

This article will discuss some of the problems practitioners encounter in discovering opinions from experts and make suggestions on how such difficulties may be minimized. Some of the hurdles in calling an expert to trial not specifically "retained" by you or your client will also be examined. The need is apparent for uniform standards to guide litigants and experts as to the cost of, and payment for, discovery, which should result in a much more efficient system.(3)

The Dilemma

The following are only some of the situations the author has encountered with opposing experts in the months prior to the writing of this article:

1) A deposition of the plaintiff's treating physician was scheduled at his convenience. The doctor advised that he charged $600 per hour and a check was delivered for this amount at the time of deposition. The deposition took exactly one hour; however, the doctor later billed an additional $800 for "preparation." The doctor retained an attorney, who filed a "motion for additional fees." The trial judge refused to award the additional compensation based on the agreement between the physician and my office.

2) The expert demands payment of $2,000 prior to his discovery deposition being taken. A motion to compel and to assess a reasonable fee for the deposition was filed.

3) An expert charges $500 more if the deposition is videotaped--no additional preparation needed--with the reason given as: "Turn on the camera and pay me more money!"

4) A treating neurosurgeon was subpoenaed to trial by plaintiffs attorney. He testifies on cross as to his charge for coming to court, "I told him (plaintiff's attorney) if I have to come here to testify (doctor was given a set time to testify; courthouse was 10 minutes from his office) he's going to pay me $5,000 per hour." His testimony took two and, one-half hours.

5) Treating physician subpoenaed to trial, with the doctor's fee ("demand") not agreed to by counsel. The testimony went something like...