Fake Movies and Real Savings: How Two Recent Decisions Can Save Clients Thousands in Expert Fees

Written by: Taylor P. Kordsiemon

In August this year, the Utah Supreme Court issued its decision in Luna v. Luna, 2020 UT 63 (Luna II).  The majority and dissenting opinions can only be described as groundbreaking.  The majority cites to a Reddit conspiracy theory regarding a nonexistent movie called “Shazaam” that starred the comedian Sinbad!  Twenty-seven nuns make a surprise appearance!  Justice Lee uses the phrase “mad respect” in dissent!  Oh, and the court held that a party’s sworn deposition testimony does not constitute a binding judicial admission and can be contradicted with other credible evidence.

And yet, for many legal practitioners, the most interesting thing about Luna II is what isn’t in the opinion at all.

Although Luna II ultimately reversed the Utah Court of Appeals’ adoption of the judicial admission doctrine, that was not the only issue that the lower court ruled on.  In Luna v. Luna, 2019 UT App 57, 442 P.3d 1155 (Luna I), the court of appeals also interpreted rule 26 of the Utah Rules of Civil Procedure in a way that could have significant impact on a variety of personal injury and medical malpractice litigation.  At issue was whether rule 26 required the party taking a deposition of a non-retained expert to pay the hourly fee charged by that expert.  The Luna I court held that no such obligation exists, and the supreme court apparently decided to not grant certiorari on that basis.

Rule 26(a)(4)(A)–(B) lays out different rules applicable to retained and non-retained experts.  For retained experts, a party is required to disclose a report generally summarizing an expert’s qualifications and opinions.  And if further discovery of the expert is warranted, it may be obtained via deposition or written report.  But the deposition cannot exceed four hours and “the party taking the deposition shall pay the expert’s reasonable hourly fees for attendance at the deposition.”

Rule 26(a)(4)(E), however, is applicable to non-retained experts.  That rule only provides that a party must disclose a summary of the expert’s opinion and that deposition of such a witness cannot exceed four hours.  It says nothing about fees.

Expert witnesses are typically highly qualified individuals who value their time accordingly, and that is why they often charge between $250 and $1000 per hour.  And non-retained experts—often physicians currently engaged in treating injured plaintiffs—are usually no less qualified.  Thus, it comes as no surprise that non-retained experts would prefer to be compensated at their professional hourly rate for any time that they spend in depositions.  Just as unsurprising is the fact that parties deposing non-retained experts would rather not pay such expensive rates.

Unfortunately for non-retained experts (but fortunately for the defense bar), the court of appeals held that the provision in rule 26(a)(4)(B) pertaining to payment of an expert’s reasonable hourly rate does not apply to non-retained experts.  That means that non-retained experts are treated the same as any fact witness as far as fees are concerned—they are entitled only to nominal fees calculated on a per diem basis if they have been subpoenaed to appear for a deposition.

The Utah Supreme Court did not reverse the court of appeals’ rule 26 holding in Luna I, and that holding remains good law.  If civil defense attorneys and others squaring off against non-retained experts properly take advantage of the holding in Luna I, they can potentially save their clients thousands of dollars in avoided expert fees.  As for non-retained experts and others unhappy with the holding, the court of appeals encourages them to bring the matter “to the attention of the committee tasked with drafting and amending the rules.