Kincannon v. Murray et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 24-cv-01585-PAB-NRN
ANTHONY DANIEL KINCANNON,
Plaintiff,
v.
VIRGIL NASON MURRAY, and
WESTERN DISTRIBUTING COMPANY, a Colorado corporation,
Defendants.
ORDER ON PLAINTIFF’S MOTION TO COMPEL DEFENDANTS TO PAY
DEFENDANTS’ PORTION OF PLAINTIFF’S EXPERT WITNESS FEES (ECF No. 38)
N. REID NEUREITER
United States Magistrate Judge
This matter comes before the Court on Plaintiff Anthony Kincannon’s Motion to
Compel Defendants to Pay Defendants’ Portion of Plaintiff’s Expert Witness Fees, filed
February 26, 2026. ECF No. 38. Defendants responded in opposition on March 19,
2026. ECF No. 41. The Court heard argument on April 2, 2026. See ECF No. 42.
I. Background
This case arises from injuries resulting from a trucking motor-vehicle accident
that occurred in Eagle County on December 8, 2022. Plaintiff says he was hit and
injured by the tractor-trailer driven by Defendant Virgil Murray. Per the proposed
scheduling order, Plaintiff claimed $83,646.60 in medical expense damages and
claimed to have incurred a minimum of $106,949 in lost past wages. See ECF No. 23.
Plaintiff retained expert economist Luigi Calabrese to opine as to Plaintiff’s wage
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earnings and household services losses. Mr. Calabrese’s 8-page affirmative expert
opinion is found at ECF No. 38-1. Mr. Calabrese also reviewed and responded to
Defendants’ expert rebuttal report (found at ECF No. 38-2) with a “surrebuttal” report,
answering the defense critiques of his original report and attacking the defense expert
opinions. The surrebuttal is found at ECF No. 38-3.
The case has apparently been resolved and the only remaining issue before the
Court is whether and to what extent Defendants are required to pay for Mr. Calabrese’s
time spent in preparation for deposition after defense counsel noticed Mr. Calabrese’s
deposition.
II. Claimed Expert Fees in Preparation for Deposition
Mr. Calbrese’s rate for expert work is $500 per hour. Mr. Calabrese is claiming
23.5 hours of total time, to the tune of $11,150.00, for preparing for and giving his
deposition. See ECF No. 38-4 (Calabrese Invoice). Beyond his own time, which is
alleged to have totaled 19.5 hours, Mr. Calabrese is also seeking compensation for four
hours of his assistant’s time at $350 per hour. Id. The deposition only lasted 2.5 hours.
Id. The amount claimed for the deposition itself is not in dispute. ECF No. 38 at 5 n.1.
Neither is Mr. Calabrese’s hourly rate. The issue is whether it was reasonable for Mr.
Calabrese and his assistant to have incurred 21 hours—the equivalent of nearly three
full workdays—to prepare for a deposition in a relatively simple personal injury case,
and whether Defendants should have to pay for that preparation time.
Mr. Calabrese submitted an affidavit in support of the supposed reasonableness
of spending 21 hours (17 hours of his professional time and four hours of staff support)
to prepare for his 2.5 hour deposition. See ECF No. 38-7. He said that he conducted an
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“exhaustive review” of three distinct expert reports to “ensure readiness for cross-
examination.” But two of those reports he had written himself (his original report and the
surrebuttal report), and the third report (the Jacobson Rebuttal Report) he had had to
review in the first instance, presumably “exhaustively,” to write his surrebuttal report. He
also says that he “supervised the preparation” of his “expert binder,” which involved the
organizing all supporting tables, exhibits, and data sets for the three reports “to ensure
immediate retrieval and accuracy during testimony.” He also says that the four hours of
staff time were utilized for the physical preparation and organization of schedules,
supporting documentation, and physical/digital compilation of the expert dossier to
ensure all cross-references between the rebuttal and surrebuttal reports were precise.
Id. at 1–2. Mr. Calabrese also spent “significant time” reviewing critical assumptions
regarding lost wages and pecuniary damages. “This required a ‘deep-dive’ evaluation of
the Plaintiff’s business management within the context of dynamic and complex market
conditions specifically associated with the COVID-19 pandemic, as detailed in [the]
Surrebuttal Report.” Id.
III. Standard for Award of Expert Preparation Fees
A party seeking discovery from an expert “must pay the expert a reasonable fee
for time spent in responding to discovery,” unless manifest injustice would result. Fed.
R. Civ. P. 26(b)(4)(E)(i). What constitutes a reasonable fee for purposes of this rule lies
within the discretion of the court. Fiber Optic Designs, Inc. v. New Eng. Pottery, LLC,
262 F.R.D. 586, 589 (D. Colo. 2009). “[W]hile a party may contract with any expert it
chooses, the court will not automatically tax the opposing party with any unreasonable
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fees charged by the expert.” Kernke v. Menninger Clinic, Inc., Civ. No. 00-2263-GTV,
2002 WL 334901, *1 (D. Kan., Feb. 26, 2002).
Several factors may be relevant in determining a reasonable fee, including: (1)
the area of expertise of the expert; (2) the education and training required to provide the
expert insight that is sought; (3) the prevailing rates of other comparably respected
available experts; (4) the nature, quality and complexity of the discovery responses
provided; (5) the fee actually being charged to the party who retained the expert; (6)
fees traditionally charged by the expert on related matters; and (7) any other factor likely
to be of assistance to the court in balancing the interests implicated by Rule 26. Fiber
Optic Designs, 262 F.R.D. at 589; see also Sterisil, Inc. v. ProEdge Dental Prods., Inc.,
No. 13-cv-01210-REB, 2019 WL 1429280, at *1 (D. Colo. Mar. 29, 2019). Ultimately,
the burden of proving the reasonableness of an expert’s fees lies with the party seeking
reimbursement. Royal Maccabees Life Ins. Co. v. Malachinski, D.O., 2001 WL 290308,
at *16 (N.D. Ill. 2001). “[T]he basic proposition [underlying Rule 26(b)(4)(C)] is relatively
straightforward—a party that takes advantage of the opportunity afforded by Rule
26(b)(4)(A) to prepare a more forceful cross-examination should pay the expert’s
charges for submitting to this examination.” Constellation Power Source, Inc. Select
Energy, Inc., No. 3:04cv983 (MRK), 2007 WL 188135, at *7 (D. Conn., Jan. 23, 2007)
(citing 8A Wright, Miller & Marcus, Federal Practice & Procedure § 2034).
On the issue of whether a deposing party is required to pay for the preparation
time of the opposing expert, the caselaw is not consistent. For example, in a case out of
the Northern District of Illinois, the court stated,
[T]ime spent “preparing” for a deposition entails not only the expert’s review
of his conclusions and their basis, but also consultation between the
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responding party’s counsel and the expert to best support the responding
party’s case and to anticipate questions from seeking party’s counsel. An
expert’s deposition is in part a dress rehearsal for his testimony at trial and
thus his preparation is part of trial preparation. One party need not pay for
the other’s trial preparation.
Rhee v. Witco Chem. Corp., 126 F.R.D. 45, 47 (N.D. Ill. 1989). And, as Magistrate
Judge Craig Shaffer stated in Fiber Optic Designs, “[n]o one could plausibly suggest
that an opposing party should be required to reimburse an expert for preparation costs
that the expert will inevitably incur if the case proceeds to trial and the expert is actually
called as a witness.” 262 F.R.D. at 591. Magistrate Judge Abram of this Court denied
an award of preparation time to an opposing expert, following the reasoning in the Rhee
case. See Benjamin v. Gloz, 130 F.R.D. 455, 457 (D. Colo. 1990) (“I agree with the
holding of the Rhee case and therefore deny plaintiff's request to the extent that it seeks
compensation for the time [the expert] spent preparing for the deposition.”).
Other cases unhesitatingly permit the recovery of reasonable fees for the time an
expert spends preparing for a deposition. See, e.g., Boos v. Prison Health Servs., 212
F.R.D. 578, 580 (D. Kan. 2002) (awarding compensation for deposition preparation
time); Fairley v. Andrews, No. 03 C 52007, 2008 WL 961592, at *4 (N.D. Ill., April 8,
2008) (“[C]osts associated with the time spent preparing for a deposition are
recoverable, as well as the time attending the deposition.”); Lent v. Fashion Mall
Partners, 223 F.R.D. 317, 318 (S.D.N.Y. 2004) (“Rule 26(b)(4)(C) clearly contemplates
remuneration for time spent responding to discovery requests, which would include
reasonable preparation for a deposition.”); Fleming v. United States, 205 F.R.D. 188,
190 (W.D. Va. 2000) (“[I]t is well established that time spent by an expert preparing for
his or her deposition by opposing counsel is part of a reasonable fee under Rule
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26(b)(4)(C)”). But, as Judge Shaffer also pointed out, an automatic rule requiring the
deposing party to pay for time spent preparing for a deposition ignores the distinction
between the deposition itself and preparation. The lawyer taking a deposition can
control the length of examination and thereby limit the fees incurred. “Counsel does not
have the similar ability to control or limit the time allegedly spent in deposition
preparation.” Fiber Optics Designs, 262 F.R.D. at 592. Such was the situation in this
case, where defense counsel limited the deposition time to 2.5 hours, but Plaintiff’s
expert supposedly had spent more than 20 hours preparing for that deposition—seeking
to charge nearly ten times the cost of the deposition time for his prep time.
Rather than drawing a bright line rule, other cases allow for reimbursement of
deposition preparation time under extenuating circumstances or in complex cases
where additional preparation time would be merited. See, e.g., 3M Co. v. Kambar, No.
C06-01225 JW (HRL), 2007 WL 2972921, at *3 (N.D. Cal., Oct. 10, 2007) (noting
“persuasive authority which states that ordinarily the deposing party need only pay for
time spent in deposition, unless it is a complex case or there are extenuating
circumstances which require additional preparation time;” the court found no
extenuating circumstances in that case); Fisher v. Accor Hotels, Inc., No. Civ.A 02-CV-
8576, 2004 WL 73727, at *2 (E.D. Pa., Jan. 12, 2004) (denying reimbursement for
deposition preparation where the expert’s report and supplement totaled five pages, the
issues were not complex, and the deposition occurred approximately two months after
the expert report was disclosed); Fait v. Hummel, No. 01 C 2771, 2002 WL 31433424,
at *4 (N.D. Ill., Octo. 30, 2002) (“Costs for deposition preparation are generally not
awarded except in complex cases where experts must review voluminous documents.”).
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In the Fiber Optic Designs case, which was a relatively complex patent suit
where the deposition took 7.5 hours and took place within a month of the expert’s Rule
26(a)(2)(B) disclosures, Judge Shaffer followed the line of cases allowing for
reimbursement of an expert’s time preparing for a deposition, but ordered
reimbursement of only four hours of deposition preparation time. The expert had
claimed 16.1 hours of preparation time over a six-day period to review “material” in
preparation for his deposition. The fee award decision was based in part on the
relatively short interval between the completion of the expert report and the deposition,
which meant the expert “likely required minimal time to refresh his recollection and
prepare his testimony.” 262 F.R.D. at 594.
In the Sterisil case, cited above, Judge Brooke Jackson was deciding whether to
award fees for deposition preparation time. He found that “it is reasonable for an expert
witness to spend some time preparing for a deposition,” and “[c]ompensation for
reasonable preparation time is reasonable.” 2019 WL 1429280, at *2. Judge Jackson
determined that, for one expert, 7.5 hours of preparation time for a seven-hour
deposition was reasonable, and for another, two hours of preparation time was
reasonable for three hours spent in deposition. Id. at *2–3.
IV. Decision
The Court will follow the decisions of Magistrate Judge Shaffer and Judge
Jackson and award a reasonable fee for reasonable preparation for the deposition on
this case.
However, here, the expert spent an unreasonable amount of time preparing to
testify at deposition. The expert witness had written two of the three expert reports
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about which he was to be examined. And he presumably had already carefully and
“exhaustively” reviewed the third report, other side’s rebuttal report, in order to write his
own surrebuttal report. So, the deposition preparation should have been more a review
of materials previously carefully studied—a refresher—rather than learning new
information. In addition, the use of staff to create binders of exhibits “to ensure
immediate retrieval and accuracy during testimony” is something that 1) should have
been done in connection with the writing of the reports themselves, and 2) would
necessarily be used in connection with testimony at trial.
In short, asking the other side to pay for 21 hours of expert preparation time for
what turned out to be a 2.5 hour deposition is, on its face, unreasonable. This was a
relatively simple personal injury case. At argument on this motion, Plaintiff’s counsel
disclosed that he already paid more than $40,000 to Mr. Calabrese for the preparation
of his original and surrebuttal reports. To pay more than $10,000 for the expert to then
get ready to answer questions about the reports that he had previously written or
extensively studied is unreasonable. The Court believes that spending four hours—a
half a day’s work time—to prepare for testimony in such a case is reasonable. Four
hours would be enough time to refresh oneself on the reports previously written and
studied. The exhibits and other materials that were organized in order to be prepared to
answer the questions should have been done in connection with the writing of the
reports, or would be used in connection with testimony at trial, and will not be
compensated. In the future, Plaintiff’s counsel needs to supervise its expert more
carefully and disabuse the expert of the notion that unlimited days spent preparing for a
deposition would be compensated.
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Accordingly, Defendants are ORDERED to pay for $2,000 to Plaintiff for four
hours of Mr. Calabrese’s deposition preparation time.
Dated at Denver, Colorado this 14th day of April, 2026.
_______________________
N. Reid Neureiter
United States Magistrate Judge
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