RUIZ

v.

SHARKNINJA OPERATING LLC

DEPOSITION OF DEFENDANTS’ EXPERT DR. ANUP PATEL, M.D. (Doc. No. 39) FILED: April 17, 2023

THEREON it is ORDERED that the motion is GRANTED in part and DENIED in part.

I. BACKGROUND

On May 12, 2021, Plaintiff filed suit in the Ninth Judicial Circuit in and for Osceola County against Defendants SharkNinja Operating, LLC (“SharkNinja”) and Walmart, Inc. (“Walmart”), alleging counts of strict liability and negligence against each Defendant and one count of breach of implied warranty against Walmart. Doc. No. 1-1. In sum, Plaintiff alleges that she purchased at a Walmart retail store a Nutri Ninja Pro BL450 food blender that was designed, manufactured,

produced, imported, supplied, and/or distributed by SharkNinja, the blender was defective, and Plaintiff suffered severe and permanent hand injuries while using the defective blender. Id., ¶¶ 16-23. Defendants removed the case to this Court on October¹, 2021. Doc. No. 1. By the present motion, Plaintiff challenges the deposition fees charged by one of SharkNinja’s disclosed experts, Anup Patel, M.D. Doc. No. 39. Upon proper notice, Plaintiff conducted a videotaped deposition of Dr. Patel on March 14, 2023 for a period of two hours and eight minutes. Doc. No. 39-2. During his deposition, it became clear that the parties were not in agreement over the hourly rates for Dr. Patel – with Dr. Patel stating that he would not take less than $1,500.00 for the first deposition hour, and $1,000.00 for every subsequent hour. Id., at 96- 97. See also Doc. No. 53-1 (Dr. Patel’s fee schedule confirming he charges “$1,500 first 60 minutes and $500 each additional 30 minutes” for videotaped depositions). On March 15, 2023, Dr. Patel invoiced Plaintiff’s counsel for a total of $2,750 ($1,500.00 for hour one, $1,000.00 for hour two, and $250.00 for the next quarter hour). Doc. No. 39-4.

Plaintiff now contends that Dr. Patel’s rates are unreasonably excessive, and requests that they be reduced to $500.00 an hour. Doc. No. 39. SharkNinja opposes the request, arguing that Dr. Patel’s stated rates are appropriate given his experience and specializations. Doc. No. 40. With leave of Court, the parties submitted supplemental briefing. Doc. Nos. 51, 53; see also Doc. No. 41. With the issues fully briefed, and for the reasons set forth below, Plaintiff’s motion (Doc. No. 39) is due to be granted in part to the extent that the Court finds Dr. Patel’s requested hourly rates unreasonably high, but denied to the extent that the Court finds Plaintiff’s suggested $500.00/hour rate too low.

II. APPLICABLE LAW

Federal Rule of Civil Procedure 26(b)(4)(A) provides that “[a] party may depose any person who has been identified as an expert whose opinions may be presented at trial.” Fed. R. Civ. P. 26(b)(4)(A). And Rule 26(b)(4)(E) states in relevant part that “[u]nless a manifest injustice would result, the court must require that the party seeking discovery . . . pay the expert a reasonable fee for time spent in responding to discovery under Rule 26(b)(4)(A) or (D).” Fed. R. Civ. P. 26(b)(4)(e). In determining what constitutes a reasonable fee, courts look at the following factors: “(1) the prevailing rate for a comparable, available expert; (2) the witness’s area of expertise; (3) the education and training required for the opinion sought; (4) the nature, quality, and complexity of the discovery responses provided;

(5) the fee being charged to those who retained the expert; (6) the cost of living in the particular geographic area; (7) fees traditionally charged on related matters; and (8) any other factor likely to be of assistance to the court in balancing the interests implicated by Rule 26.” Gluck v. Geico Gen. Ins. Co., No. 8:19-cv-634-T-27AEP, 2020

WL 339593, at *1 (M.D. Fla. Jan. 21, 2020) (citing Fell v. United States, No. 3:15-cv- 541/MCR/EMT, 2017 WL 2819040 (N.D. Fla. June 9, 2017), report and recommendation adopted, 2017 WL 2817881 (N.D. Fla. June 29, 2017)).

“As a general rule, the party seeking reimbursement of deposition fees bears the burden of proving reasonableness.” Aguila v. Amer. Inst. for Foreign Study, Inc. et al., No. 22-21146-Civ-WILLIAMS/TORRES, 2023 WL 5317831, at *3 (S.D. Fla. July 24, 2023) (quoting Mannarino v. United States, 218 F.R.D. 372, 374 (E.D.N.Y. 2003)).

Ultimately, however, “a balance is necessary between enabling a party to attract competent experts and ensuring that the inquiring party ‘will not be unfairly burdened by excessive ransoms which produce windfalls for [the other party’s] experts.’” Roca Labs, Inc. v. Consumer Op., Corp., No. 8:14-CV-2096-T-33EAJ, 2015 WL 12844308, at *2 (M.D. Fla. July 23, 2015) (quoting Fraser v. AOL LLC, No. 3:06– cv–954–J–20TEM, 2008 WL 312670, at * 1 (M.D. Fla. Feb. 4, 2008)). Thus, “the question of what fee is reasonable falls within the discretion of the Court.” Gluck, 2020 WL 339593, at *1 (citation and quotation marks omitted).

III. ANALYSIS

The parties supplied briefing on five of the seven factors listed in Gluck and

Fell: Dr. Patel’s area of expertise; the fees traditionally charged by Dr. Patel on related matters; the nature, quality, and complexity of the discovery responses provided by Dr. Patel; the fees being charged to SharkNinja counsel; and the prevailing rate for a comparable expert to Dr. Patel. Doc. Nos. 39, 40, 51, 53. See Fell, 2017 WL 2819040, at *3 (“The list of factors that may be relevant can vary from case to case.”). Applying the five Gluck and Fell factors briefed by the parties, and upon due consideration of the parties’ briefs and submitted evidence, the Court concludes that an appropriate expert fee for Dr. Patel’s deposition is $750.00 an hour. With respect to Dr. Patel’s area of expertise, there is no doubt that Dr. Patel is a well-educated and highly qualified plastic surgeon. He is board-certified by the American Board of Plastic Surgery, graduated valedictorian of his undergraduate class at the University of Florida and top of his class at Yale University School of

Management and Yale University School of Medicine, and completed hand and microsurgery fellowships at New York University Hospital and Mount Sinai Medical Center. Doc. No. 39-2, at 7; Doc. No. 40-1. He practices at Orlando Hand Surgery Associates and Orlando Plastic Surgery Institute, has served on numerous advisory boards, committees, and public outreach programs, and is a prolific presenter/lecturer/publisher. Doc. No. 40-1. See also Doc. No. 51, p. 3 (Plaintiff conceding “Dr. Patel is undoubtedly a well-educated and qualified practicing doctor and surgeon”). Moreover, Dr. Patel is not a treating physician of Plaintiff, and as such, courts in this district generally afford slightly higher expert witness fees than those awarded to similarly situated treating physicians. See, e.g., Cartrette v. T & J Transp., Inc., No. 3: 10–cv–277–J–25MCR, 2011 WL 899523, at * 1 (M.D. Fla. Mar. 15, 2011) (awarding lower rates to treating physicians that provide expert testimony because “in cases where the testimony is from a treating physician (as opposed to a specially retained expert), the Court should also consider the fact that, ‘[w]hen knowledge gained [through the doctor-patient] relationship bears on an issue in controversy, the treating physician assumes the obligation born by all citizens to give relevant testimony.’”) (citing Fraser v. AOL LLC, No. 3:06–cv–954–J–20TEM, 2008 WL 312670, at *1 (M.D. Fla. Feb. 4, 2008)); see also Roca Labs, Inc., 2015 WL 12844308, at *2 (“In the Eleventh Circuit, expert deposition fees may be reduced where the expert is a treating physician.”). However, the main area of dispute in this matter is whether Plaintiff suffers from complex regional pain syndrome. See Doc. No. 39-2, at 19:5 (Dr. Patel stating “the crux of this case is [complex regional pain syndrome].”). To that end, Dr. Patel conceded during his deposition that his experience and expertise in this area is not at the same level as his experience in plastic surgery. Doc. No. 39-2, at 14:9–23 (Dr. Patel confirming he is not board certified in physical medicine and rehabilitation, pain medicine, or interventional pain management); Id. at 15:2–21 (Dr. Patel stating none of his research or publication credits have directly related or were “designed to address” complex regional pain syndrome); Id. at 10:2-7 (Dr. Patel noting that since 2016 he has only diagnosed complex regional pain syndrome about 20 times). Thus, despite Dr. Patel’s impressive credentials, his lack of heightened expertise in the particular field of complex regional pain syndrome weighs against his claim to his requested deposition rate. See Dobson v. Matrixx Initiatives, Inc., No. 05–80984– CIV–RYSKAMP/VITUNAC, 2007 WL 842130, at *1 (S.D. Fla. Mar. 20, 2007) (reducing a causation and damages expert’s fee because “[a]lthough [he] is board certified in neurology and psychiatry, he did not treat Plaintiff for psychiatric issues.”). Moreover, with regards to the second Gluck and Fell factor, the fees Dr. Patel traditionally charges on related matters, paramount to that consideration is Dr. Patel’s limited experience as an expert witness. Dr. Patel has only appeared as an expert witness twice, with both instances occurring approximately four years prior to his deposition in this case. Doc. No. 39-2, at 5:6–6:8. This inexperience also weighs against Dr. Patel’s claim to his requested deposition rates. See Roca Labs, Inc., 2015 WL 12844308, at *3 (reducing by 50% the proposed rate of an expert witness who had not previously testified as an expert witness).

In addition, the third Gluck and Fell factor, the nature, quality, and complexity involved in Dr. Patel’s work and discovery in this case, does not weigh in favor of the hourly rates he seeks. His participation in this litigation to this point has been limited, apparently consisting of a single medical evaluation, his deposition testimony, and a four-page January 10, 2023 report with general medical findings about the residual functional capacity of Plaintiff’s hand. See Doc. No. 39-3. And SharkNinja fails to produce sufficient evidence suggesting this products liability case is novel or complex. See Aguila, 2023 WL 5317831, at *4 (reducing fees for several experts because “nothing about the deposition transcripts or the allegations in this [] dispute suggest novelty or unusual complexity.”). The fifth Gluck and Fell factor, the prevailing rate for comparable experts to

Dr. Patel, also weighs against the rates requested by Dr. Patel and SharkNinja. The market rate for board-certified non-treating physician experts like Dr. Patel is markedly lower than Dr. Patel’s requested rate. See, e.g., Roca Labs, Inc., 2015 WL

12844308, at *3 (reducing a board-certified non-treating physician’s requested expert fee rate from $750.00 an hour to $500.00 an hour); Barnes v. Hickox, No. 3:08– cv–938–J–25JRK, 2009 WL 10670584, at *3 (M.D. Fla. Oct. 13, 2009) (reducing a board-certified non-treating physician’s requested expert fee from $1100.00 an hour to $975.00 an hour); Aguila, 2023 WL 5317831, at *5 (reducing a board-certified non-treating physician’s requested expert fee from $1100.00 an hour to $750.00 an hour); Dobson, 2007 WL 842130, at *2 (reducing a board-certified non-treating physician’s requested expert fee from $1450.00 for the first hour and $1082.00 every subsequent hour to $500.00 an hour). See also Doc. Nos. 51-1, 51-2 51-3 (listing $500.00/hour for non-treating board-certified expert surgeon in Jacksonville,

Florida). And SharkNinja provides no persuasive legal authority suggesting that the relevant market rate would support the rates requested by Dr. Patel.¹ The only factor that appears to weigh in favor of Dr. Patel’s higher rates is the fourth Gluck and Fell factor, the fees being charged to SharkNinja. Apparently, SharkNinja has already agreed to pay Dr. Patel $800 an hour for phone conferences

IV. CONCLUSION.

For the reasons stated herein, Plaintiff’s Motion to Establish a Reasonable Fee (Doc. No. 39) is GRANTED in part and DENIED in part. It is ORDERED that Plaintiff shall compensate Dr. Patel for two hours and eight minutes of deposition

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LESLIE AN PRICE

UNITED STATES MAGISTRATE JUDGE

Copies furnished to: Counsel of Record Unrepresented Parties