Trible v. Auto-Owners (Mutual) Insurance Company

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
THOMAS J. TRIBLE, JR., )
)
Plaintiff, )
)
v. ) 25-2189-TC-GEB
)
OWNERS INSURANCE COMPANY, )
)
Defendant. )
ORDER
This matter comes before the Court on Defendant Owners Insurance
Company’s Oral Motion to Reduce Plaintiff’s Expert Witness Fees (“Motion”)
(ECF No. 44). At the request of counsel, the Court held a discovery hearing.
Plaintiff appeared through counsel Brendan Buckley. Defendant appeared through
counsel Brian Bartlett. During the hearing, Defendant raised its Motion. The Court,
having reviewed the parties’ position statements, the submitted fee statements, as
well as the relevant caselaw, and having heard the argument of counsel, DENIES
Defendant’s Motion for the reasons set forth below.
I. Background1
This case arises from a motor vehicle accident which occurred on November
10, 2020 in Wyandotte County involving Plaintiff and another driver. The other
driver’s insurance paid Plaintiff its policy limits which Plaintiff alleges did not
1 The facts are taken from Plaintiff’s Amended Complaint (ECF No. 27) and the parties’
position statements unless otherwise indicated. This background information should not be
considered as judicial findings or factual determinations.
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compensate him for all damages. He filed suit against Defendant, his own insurer,
in the District Court of Wyandotte County, Kansas for payment pursuant to the
underinsured automobile coverage under his policy. The policy provides for
$1,000,000 underinsured motorist coverage per person and per occurrence. Plaintiff
claims damages which exceed the amount of this coverage.
Defendant removed the case to this Court on April 10, 2025. Pursuant to the
parties’ Scheduling Order, Plaintiff disclosed the following retained expert
witnesses on October 3, 2025.2
- Patrick D. Griffith, MD, a pain management specialist in Kansas City,
MO.
- Howard Aks, MD, a pain management specialist in Overland Park,
KS.
- Cori Ingram, BSN, RN, CNLCP, a life care planner in Basehor,
Kansas.
Defendant took the deposition of Dr. Griffith on December 8, 2025 which
lasted approximately one hour and twenty minutes. It additionally wants to take the
depositions of Dr. Aks and Ms. Ingram and objects to the fees charged by each of
the three experts. Dr. Griffith charges $3,700 for the first two hours and $925 per
half hour after two hours (average hourly rate - $1,850). Dr. Aks charges $2,400 for
the first four hours and $500 per hour after four hours (average hourly rate - $550).
Ms. Ingram charges $1,500 per hour with payment due one week prior to the
deposition date. Defendant offered to pay Dr. Griffith and Dr. Aks $500 per hour
2 ECF No. 35.
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and Ms. Ingram $350 per hour with payment after the deposition, based upon the
actual time involved. When the experts declined to accept the reduced rate,
Defendant raised the matter with the Court. Defendant asks the Court to find the
experts’ fee rates are unreasonable and reduce the deposition fee rate to the amount
it offered to pay the experts.
II. Discussion
“A party may depose any person who has been identified as an expert whose
opinions may be presented at trial.”3 “Unless manifest injustice would result, the
court must require the party seeking” the deposition “pay the expert a reasonable
fee for time spent in responding to discovery.”4 There is very little authority,
particularly in this District, regarding what constitutes a reasonable fee. However,
determining “[w]hat constitutes a reasonable expert witness fee is within the court’s
sound discretion.”5
Other district courts in the Tenth Circuit and beyond have adopted a set of
factors to assess whether fees charged are reasonable.6 Those factors are as follows:
(1) the expert’s area of expertise; (2) the education and
training required for the expert’s insights; (3) the rates
3 Fed. R. Civ. P. 26(b)(4)(A).
4 Fed. R. Civ. P. 26(b)(4)(E).
5 Kernke v. Menniger Clinic, Inc., No. 00-2263-GTV, 2002 WL 334901, at *1 (D. Kan.
Feb. 26, 2002) (citing Edin v. Paul Revere Life Ins. Co., 188 F.R.D. 543, 545-56 (D. Ariz.
1999)).
6 Burke v. State Farm Mut. Auto Ins. Co., No. 21-2512, 2022 WL 1679213, at *1 (D. Colo.
Sept. 8, 2022); Hampton v. Utah Dept. of Corrections, No. 18-0079-CMR, 2022 WL
22888394, at *2-3 (D. Utah Jan. 31, 2022); K.G., by and through her mother and next
friend Christine C. v. Santa Fe Pub. Sch. Dist., No. 12-1209, 2014 WL 12796736, at *1 (D.
N.M. Mar. 19, 2014); and Willis v. Bender, No. 06-0211, at *3 (D. Wyo. April 12, 2007).
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of other comparable experts; (4) the nature, quality and
complexity of the proposed discovery; (5) the fee
actually being charged to the party who retained the
expert; (6) the fees charged by the expert in related
matters; and (7) any other factor helpful to the court.7
Like in Kan. Penn Gaming, LLC v. HV Properties of Kansas, LLC,8 the parties’
position statements base their arguments on the above listed factors, the Court will
analyze their arguments in the same manner. “Although courts in this district have
not squarely addressed this issue, other courts have found that the party seeking
reimbursement bears the burden of demonstrating the reasonableness of the amount
claimed.”9 It should be noted, Plaintiff is not the moving party. He is not seeking
reimbursement for any amounts he had to pay to his experts for the depositions to
proceed or seeking payment on behalf of his experts. It is Defendant who before
making payment for any expert deposition seeks to reduce the experts’ fees which
it views as unreasonable.
a. The Expert’s Area of Expertise and the Education and
Training Required for the Expert’s Insights
The Court will address the first two, related factors together. After conducting
an independent medical exam of Plaintiff and reviewing his medical records and
7 Burke, 2022 WL 1679213, at *1.
8 No. 08-4111-RDR/08-4115-RDR, 2009 WL 3756276, at *2 (D. Kan. Nov. 5, 2009).
9 Id. at *2 (citing Marin v. U.S., No. 06 Civ. 552(SHS), 2008 WL 5351935, at *1 (S.D.N.Y.
Dec. 22, 2009) (citing Mark Andrew of the Palm Beaches, Ltd. v. GMAC Commercial Mort.
Corp., No. 01 Civ. 1812, 2003 WL 21767633 (S.D.N.Y. July 31, 2009) and New York v.
Solvent Chem. Co., 210 F.R.D. 462, 468 (W.D.N.Y.2002)); see also Gonzalez–Bey v.
Godinez, No. 93 C 5152, 2002 WL 1008469, at *2 (N.D.Ill. May 16, 2002) (finding that
the party producing the expert had satisfied its burden of demonstrating the fee was
reasonable)).
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bills related to treatment following the November 10, 2020 accident, Dr. Griffith
offered his opinion regarding the causal connection between the accident and
Plaintiff’s injuries, the permanent nature of his injuries, the reasonableness and
necessity of the treatment, the reasonableness of the bills incurred, and the need for
future treatment and costs of same. Dr. Howard Aks also performed an independent
medical exam. He opined regarding the reasonable and necessary nature of
Plaintiff’s treatment and expenses and Plaintiff’s future medical care requirements,
particularly related to pain management, future surgeries, radiology, and
medications and the costs associated with same. And Ms. Ingram prepared a life
care plan for Plaintiff.
Dr. Griffith is a licensed medical doctor. He is board certified by both the
American Board of Anesthesiology and American Board of Pain Management. He
has practiced in the area of anesthesiology and/or pain management for over 30
years. And is currently in practice in North Kansas City. Dr. Aks is also a licensed
medical doctor. He is board certified by the American Board of Anesthesiology,
American Board of Pain Management, and American Board of Independent Medical
Examiners. Dr. Aks practiced in the area of anesthesiology or pain management for
35 years before retiring. He has worked as a medical legal expert exclusively since
2020 in Overland Park. Cori Ingram is an RN with both a Bachelors of Science and
Masters of Science in Nursing. Additionally, she is a licensed nurse practitioner and
has been a Certified Nurse Life Care Planner since 2012. Prior to working as a life
care planner, Ms. Ingram worked as an RN for approximately 15 years. All three
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experts have highly specialized education and have 13+ years’ experience working
in their individual fields.
Defendant does not suggest Drs. Griffith and Aks are not highly trained and
specialized in their fields of practice, but questions whether they have any additional
training or education to provide causation testimony. Regarding Ms. Ingram, despite
being a certified life care planner, Defendant alleges her degrees, licensure, and
certifications do not justify her hourly rate. Based on these allegations, Defendant
without supporting caselaw, alleges a reasonable fee for each should be tied to what
each would make treating patients. The Court is not persuaded.
The plaintiff in Kan. Penn Gaming made a similar argument. Plaintiff, there,
sought to use how much the expert made in his employment was the “fee” the expert
charged on related matters (factor 6). Defendant here argues, based on Department
of Labor statistics, what the average anesthesiologist or RN practitioner earns is
much less than the expert fees charged by each expert making the fees unreasonable.
Judge Sebelius in Kan. Penn Gaming found the court could not say “the income [the
expert] generates from his [or her] business constitutes ‘fees’ he [or she] typically
charges.” The Court believes this analysis is equally applicable to these factors in
this particular case. Two of the three experts do not see patients, yet Defendant wants
to limit their fees charged as an expert to amounts the average anesthesiologist or
RN makes seeking patients. All three experts are highly trained in their areas of
practice and have worked from 13-35 years in their specialty. Where Defendant
cannot support its argument their fees should be tied to their earnings as
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practitioners, these two factors weigh in favor of their fees being found
reasonable.
b. The Rates of Other Comparable Experts
Neither party provided sufficient, relevant evident of the fees charged by
other comparable experts. Defendant points to Dr. Aks, as well as Plaintiff’s treating
pain management specialist as comparators for Dr. Griffiths. It offers no comparator
for Dr. Aks or Ms. Ingram beyond the Department of Labor statistics for average
earnings of anesthesiologists and registered nurses, which the Court found
unpersuasive, supra. Plaintiff, while not perfect, did produce comparative fee
schedules for each of the experts.
The Court will first address Defendant’s argument that Dr. Aks is a relevant
comparator for Dr. Griffiths based upon their similar practice areas. In response,
Plaintiff alleges Dr. Griffiths’ fees are greater than Dr. Aks’ fees because he is still
in practice and his fee schedule reflects lost opportunity costs forgoing the
opportunity to see patients for hours spent working as an expert. Plaintiff cites a
case from Iowa state court, Pierce v. Nelson, arguing a doctor acting as an expert
will expect reasonable compensation and “[i]t is reasonable that the compensation
reflect the time away from medical practice.”10 The Court does not find caselaw in
the Tenth Circuit, this District, or other districts in the Circuit directly on point.
While not deciding whether an expert’s fee would reasonably include amounts to
10 509 N.W.2d 471 (Iowa 1993).
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recovery time away from their medical practice, the Court acknowledges the
difference in Dr. Griffith and Dr. Aks current employment is significant with Dr.
Griffith still in active practice and Dr. Aks being retired from practice and solely
working as an expert. Therefore, the Court finds Dr. Aks is not a viable comparator
for Dr. Griffith.
The Court will now review to Defendant’s argument the Court should
compare Dr. Griffith’s fee schedule with the fees charged by Plaintiff’s pain
management treating physician accepts for office visits. For the reasons set forth,
supra, the Court finds this argument equally unpersuasive as the unsupported
argument the experts’ fees should be tied to what they do or would make as a treating
health care provider.
The Court will turn to the fee schedules offered by Plaintiff. He offered 12
pages of fee schedules for various experts across the country. The collection does,
however, include fee schedules for two experts in the Kansas City area – one, a
board certified orthopedic surgeon, and the other, a board certified anesthesiologist
with a pain management practice. Plaintiff also provided fee schedules for two life
care planners, one is a Doctor of Osteopathic Medicine and one from a consulting
company which uses teams of physicians and nurse/case managers to formulate life
care plans. Neither is located in Kansas. No comparator is offered for Dr. Aks.
The board certified orthopedic surgeon as a comparator for Dr. Griffiths and
the Doctor of Osteopathic Medicine for Ms. Ingram suffer from the same deficiency.
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They do not have comparable training to make them a good comparator. And the
fee schedules for the board certified anesthesiologist in Kansas City and the life
planning consulting firm, which provides a fee schedule for non-physician staff,
suffer from a separate deficiency. Neither is dated. Because the Court does not know
whether the undated fee schedules are current or ten years old, they are not valuable
as a comparison. Based on the information provided by both sides, there is only one
viable comparator for Dr. Griffith and Ms. Ingram and both are lacking because the
fee schedules for those comparators are undated. Therefore, this factor neither
weighs in favor of nor against finding the expert’s fees reasonable.
c. The Nature, Quality and Complexity of the Proposed
Discovery
Defendant downplays the complexity of the “discovery responses” it seeks
from the experts. It says it “simply seeks to question them on the foundation and
rationale for their opinions in this case.” But this misses the point. The complexity
at issue is of the substance of the opinions, the causation analysis, the injuries
sustained, the plan to treat those injuries over time, and costs associated with same,
of which there is no mention. This factor neither weighs in favor of nor against
finding the fees sought are reasonable.
d. The Fee Actually Being Charged to the Party who Retained
the Expert
The parties provided scant information regarding the fees actually being
charged to Plaintiff. Dr. Griffith charged Plaintiff a flat fee of $5,000 for a records
review, IME, and to prepare a report. Dr. Aks charged $2,000 and Ms. Ingram
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charged $2,500. Dr. Griffith did not keep track of his hours and there is no
information provided regarding the time spent by either Dr. Aks or Ms. Ingram.
Thus, the Court cannot determine an hourly rate for any of the experts. Additionally,
no information was provided by either side regarding what each expert charges for
trial testimony, which would be a better comparison of the experts’ charges to their
own client vis a vis the amounts they charge to the opposing party for providing
deposition testimony. This factor neither weighs in favor of nor against finding
the fees sought are reasonable.
e. The Fees Charged by the Expert in Related Matters
Neither side provides any information about what these experts charge in
other related matters. Therefore, this factor neither weighs in favor of nor against
finding the fees are reasonable.
f. Any Other Factor Helpful to the Court
Court’s in this District have explicitly held “time spent responding to
discovery” under Fed. R. Civ. P. 26(b)(4)(E) (formerly 26(b)(4)(C)(1)) includes “a
reasonable amount of time spend (sic) by an expert preparing for a deposition.”11
None of the experts’ fee schedules includes a charge for hours spent in preparation
for the deposition. While each of the experts’ hourly rate is on the high side and Dr.
Griffith and Dr. Aks require a minimum number of hours none of the charges for
11 Boos v. Prison Health Serv., 212 F.R.D. 578, 579 (D. Kan. 2002).
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preparation time. This factor weighs in favor of finding the experts’ fees are
reasonable.
The factors above weigh in favor of finding the experts’ fees are reasonable.
The rates charged by each expert are on the higher side of what the Court would
find reasonable. However, with the low number of relevant comparators for each
expert and the deficiencies in the information about those comparators’ fees, any
reduction of the fees the Court might impose would be arbitrary.12
g. Minimum Number of Hours Charged and Advanced
Payments
Defendant argues advanced payments to experts, such as those being
requested by Ms. Ingram, are disfavored,13 as are the flat fees14 or minimum hour
requirement sought by Dr. Griffith and Dr. Aks. Defendant does not cite to caselaw
within the Tenth Circuit, this District, or any district within this Circuit in support
of its argument and the Court finds none. These are simply additional argument the
fees sought are not reasonable. Where Defendant does not rely on precedent in this
Circuit in support of these arguments, the Court is not persuaded to veer from the
consideration of the factors above.
12 Kan. Penn Gaming, LLC, 2009 WL 3756276, at *4.
13 See Bartless v. Barbes, No. 18-0087-RGJ, 2020 WL 6785104, at *2 (W.D. Ky. Nov. 18,
2020) and Prevost v. Brice, No. 24-0425-CR, 2025 WL 416892, at *2 (D. Vt. Feb. 5, 2025).
14 Almonte v. Averna Vision & Robotics Inc., No. 11-1088S, 2014 WL 287586, at *3
(W.D.N.Y. Jan. 24, 2014).
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For the reasons set forth above and in the Court’s discretion, it DENIES
Defendant Owners Insurance Company’s Oral Motion to Reduce Plaintiff’s Expert
Witness Fees (ECF No. 44).
IT IS SO ORDERED.
Dated: December 22, 2025.
s/ Gwynne E. Birzer
GWYNNE E. BIRZER
U.S. Magistrate Judge
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