Thursday, January 19, 2012

Judge Nealon of Lackawanna County Provides Guidance on Request for Expenses for Out-of-State Expert Deposition for Trial

Tort Talkers may recall that, last week, I produced a summary of Lackawanna County Court of Common Pleas Judge Terrence R. Nealon’s Decision in the case of Locker v. Henzes regarding the admissibility of certain expert testimony in medical malpractice cases.

It has come to my attention that Judge Nealon also issued another decision in the case of Locker v. Henzes, No. 05-CIV-3174 (C.P. Lacka. Co. Jan. 9, 2012 Nealon, J.) addressing a Rule 4008 Motion for Payment for Travel Cost and Fees for an Out of State Trial Deposition.

More specifically, the medical malpractice Defendants filed a joint motion for attorney’s fees and expenses and sought a court order compelling the Plaintiff to pay defense counsel’s fees and travel expenses in connection with an upcoming video tape deposition for trial of the Plaintiff’s medical expert in Austin, Texas.

In its Opinion, the Court noted that, upon receipt of the Defendants’ joint motion, Plaintiff’s counsel offered to make arrangements for defense counsel to participate in the Plaintiff’s medical expert’s trial deposition by way of video conferencing at a rate of $125.00 per hour charged by the video conferencing company. However, since Plaintiff’s counsel planned to attend the trial deposition in person, defense counsel declined the video conferencing alternative offered.

The court noted that the Defendants premised their Motion for Counsel Fees and Travel Expenses upon   Pa.R.C.P. 4008 which provides that “[i]f a deposition is to be taken by oral examination more than 100 miles from the courthouse, the court upon motion may make an order requiring the payment of reasonable expenses, including attorney’s fees, as the Court shall deem proper.”

The Plaintiff countered that requiring the Plaintiff to pay such expenses would create an undue financial burden upon the Plaintiff.

Judge Nealon noted that there was “an absence of appellate precedent or any recent trial court analysis addressing whether an award of counsel fees and expenses is appropriate under Pa. R.C.P. 4008.” See Opinion at p. 4.
Reviewing the language of the rule, and referring to the commentary in Goodrich Amram 2d §4008: 3 (2d Ed.) along with trial court opinions, the court noted that the entry of an order compelling such a payment is “purely discretionary.”

Judge Nealon noted that the relevant factors to be considered under Rule 4008 in this regard included:

-the importance of the deposition,

-the financial status of the parties,

-the importance of cross-examination by trial counsel, and

-the difficulty of retaining and briefing local counsel to conduct that cross-examination at the deposition to site.

Applying these factors to the case at hand, the court in Locker v. Henzes ruled that the defense request for fees and expenses under Rule 4008 should be denied. More specifically, the court found that the Plaintiff’s trial expert’s opinion testimony was vital to the Plaintiff’s malpractice claim, the parties relative financial conditions indicated that the Plaintiff lacked the financial means to pay the defense counsel’s requested costs, and the court also found that a viable and less costly alternative existed in the form of a video conferencing participation.  Judge Nealon therefore ruled that these factors all weighed against granting the Defendants’ motion under Rule 4008.

Anyone desiring a copy of Judge Nealon’s detailed Opinion Locker v. Henzes (Pa.R.C.P. 4008 issue) may contact me at

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