Case Number: BC710924    Hearing Date: February 13, 2020    Dept: 27

[TENTATIVE] ORDER RE MOTION TO SET EXPERT FEE

Plaintiff filed this action on June 20, 2018 concerning a motor vehicle collision.  Defendant noticed the deposition of one of Plaintiff’s medical providers, Frank M. Tsuei, D.C., a physical therapist.  Dr. Tseui stated his fee was $900 for the first hour of deposition and $600 per hour thereafter.  Defendant moves to set Dr. Tseui’s expert witness fee.  Neither Plaintiff nor Dr. Tseui opposed.

If a party desiring to take the deposition of an expert witness deems that the fee of that expert is unreasonable, that party may move for an order setting the compensation of that expert.  Notice of this motion shall also be given to the expert.  (Code Civ. Proc., § 2034.470, subd. (a).)  A motion to set expert compensation shall be accompanied by a meet and confer declaration and either the party or the expert shall provide the other with all of the following: (1) proof of the ordinary and customary fee actually charged and received by that expert for similar services outside the subject litigation; (2) the total number of times the presently demanded fee has ever been charged and received by that expert; and (3) the frequency and regularity with which the presently demanded fee has been charged and received by that expert within the two-year period preceding the hearing on the motion.  (Code Civ. Proc., § 2034.470, subd. (b).)  In addition to any other facts or evidence, the expert or the party designating the expert shall provide, and the court’s determination as to the reasonableness of the fee shall be based on, proof of the ordinary and customary fee actually charged and received by that expert for similar services provided outside the subject litigation.  (Code Civ. Proc., § 2034.470, subd. (c).)  The court may also consider the ordinary and customary fees charged by similar experts for similar services within the relevant community and any other factors the court deems necessary or appropriate to make its determination.  (Code Civ. Proc., § 2034.470, subd. (e).)  Upon a determination that the fee demanded by that expert is unreasonable, and based upon the evidence and factors considered, the court shall set the fee of the expert providing testimony.  (Code Civ. Proc., § 2034.470, subd. (f).)

Defendant contends the reasonable fee for a physical therapist is $350-$450 per hour based on other experts defense counsel has retained.  Defense counsel states Dr. Tsuei refused to provide the information described in section 2034.470.  The information provided by Defendant shows physical therapist changing $350 (2 hour minimum), $750, and $450 (2 hour minimum).  The average is about $500 per hour.

Accordingly, the Court sets Dr. Tsuei’s rate for his deposition at $500 per hour.

Moving party to give notice.