Opinions and documents
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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LUIS ZUCCO, :
:
Plaintiff, :
: 25-CV-2048 (RWL)
- against - :
: ORDER ON EXPERT FEE
MARCOS AUTO TRANSPORT, INC., :
and JOEL SOSA, :
:
Defendants. :
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ROBERT W. LEHRBURGER, United States Magistrate Judge.
This is a tort case in which Plaintiff Luis Zucco alleges that he suffered injuries as
the result of an automobile accident. (See Complaint (“Compl.”) at Dkt. 1-1.) Before the
Court is Defendants’ letter motion to set a reasonable fee for the deposition of Plaintiff’s
orthopedic expert Dr. Sebastian Lattuga pursuant to Federal Rule of Civil Procedure
26(b)(4). (Dkt. 40.) For the reasons explained below, the Court sets Dr. Lattuga’s
reasonable fee at $650 per hour for deposition testimony time and up to one hour of
preparation time.
Background
The accident at issue occurred on February 6, 2024. (Compl. ¶ 71.) At some point
after the accident, Plaintiff began treating with Dr. Lattuga, and in April 2026, Dr. Lattuga
performed spinal surgery on Plaintiff.1 (Dkt. 40. at 1.) According to Plaintiff’s counsel
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and the website for Dr. Lattuga’s practice, Dr. Lattuga is a board-certified orthopedic spine
1 Plaintiff’s opposition does not dispute this assertion, which is based on the
representation of defense counsel in Defendants’ letter motion. (See Dkt. 40 at 1; see
generally Dkt. 41.)
surgeon.2 He serves as Chief of Spine Surgery and Medical Director at New York Spine
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Specialists, and is an Attending Surgeon affiliated with New York Presbyterian Hospital.
(Dkt. 41 at 1.) He also is a Clinical Assistant Professor of Orthopedic Surgery at Weill
Cornell Medical College. (Id.) Dr. Lattuga has been ranked in the top one percent of
doctors in the New York Metropolitan area by a nationally recognized healthcare survey
company. (Id.) Plaintiff has proffered Dr. Lattuga as an expert who treated Plaintiff and
can provide an expert opinion on causation and issues related to Plaintiff’s surgery and
medical prognosis. (Id. at 2.)
Defendants intend to depose Dr. Lattuga. In advance of that deposition, Plaintiff
has provided Defendants with a fee schedule for a “virtual telephone” deposition of Dr.
Lattuga. (Dkt. 40-1.) The schedule sets the fee at $1,500 per hour of deposition time,
and $600 per hour of preparation time, “[f]or a total of 3 hours – totaling $5,100.” (Id.)
Defendants contend that the fee demanded for Dr. Lattuga’s deposition is unreasonable
and should be set at $500 per hour for both the deposition time and preparation time.
(Dkt. 40 at 3.) Defendants rely on a case in which the Court set an hourly rate of $500
for both testimony and preparation time for the deposition of the Chief of Spine Surgery
at Bronx Lebanon Hospital who, like Dr. Lattuga here, served in both treating and expert
roles. (Id. at 2-3 (citing Addison v. Gordon, 338 F.R.D. 577 (S.D.N.Y. 2021)).)
In opposition, Plaintiff relies on a case in which a court approved a rate of $400
per hour of testimony and preparation time for a deposition of Dr. Lattuga in 2011. (Dkt.
41 at 2-3 (citing Broushet v. Target Corp., 274 F.R.D. 432 (E.D.N.Y. 2011)).) Plaintiff
2 (See Dkt. 41 at 1); https://newyorkspinespecialist.com/sebastian-lattuga-md/. For
purposes of the instant application, the Court assumes that the statements about Dr.
Lattuga’s credentials are true.
argues that inasmuch as Dr. Lattuga received an approved rate of $400 in 2001, the
passage of 15 years, along with Dr. Lattuga’s expanded surgical responsibilities and
increased professional stature, warrant his being “compensated pursuant to his
customary deposition fee schedule.” (Id. at 3.)
Legal Standard
The Federal Rules of Civil Procedure permit a party to “depose any person who
has been identified as an expert whose opinions may be presented at trial.” Fed. R. Civ.
P. 26(b)(4)(A). “Unless manifest injustice would result, the court must require that the
party seeking discovery: (i) pay the expert a reasonable fee for time spent in responding
to discovery under Rule 26(b)(4)(A) or (D) ….” Fed. R. Civ. P. 26(b)(4)(E)(i). As the rule
provides, the party taking the expert’s deposition is required only to pay a “reasonable”
fee. Id.; see also Ey v. Sam’s East, Inc., No. 17-CV-0551, 2020 WL 2415560, at *2
(S.D.N.Y. May 12, 2020) (“While a party may contract with any expert it chooses, the
court will not automatically tax the opposing party with any unreasonable fees charged by
the expert” (internal quotation marks omitted)).
Courts consider a number of factors in determining a reasonable expert fee. They
include:
(1) the witness’s area of expertise, (2) the education and
training that is required to provide the expert insight that is
sought, (3) the prevailing rates for other comparably
respected available experts, (4) the nature, quality and
complexity of the discovery responses provided, (5) the cost
of living in the particular geographic area, (6) the fee being
charged by the expert to the party who retained him, (7) fees
traditionally charged by the expert on related matters, and (8)
any other factor likely to be of assistance to the court in
balancing the interests implicated by Rule 26.
Ramos v. AMF Bowling Centers, Inc., No. 22-CV-9109, 2025 WL 3062906, at *2
(S.D.N.Y. Nov. 3, 2025) (quoting Polidora v. D’Agostino & Associates, No. 19-CV-1290,
2022 WL 4443791, at *1 (S.D.N.Y. Feb. 14, 2022)). “Flat fees for experts are generally
considered unreasonable.” Id. (citing Mendez-Caton v. Caribbean Family Health Center,
340 F.R.D. 60, 65 (E.D.N.Y. 2022)); see also Polidora, 2022 WL 443791, at *2 (“Because
the touchstone of the inquiry is reasonableness, an expert witness generally may not
request a flat fee for deposition testimony regardless of the number of hours actually
spent” (internal quotation marks omitted)); Ajasin v. Ortiz, No. 19-CV-6814, 2021 WL
1437551, at *2 (S.D.N.Y. Apr. 16, 2021) (stating that a flat fee “runs counter to th[e]
principle” of reasonableness).
The burden of proving reasonableness falls on the party seeking reimbursement.
Isakov v. Parched Hospitality Group, Inc., No. 25-CV-1407, 2025 WL 1569991, at *1
(S.D.N.Y. June 3, 2025) (“It is well established that the party seeking reimbursement for
expert fees bears the burden of proving reasonableness”); Ey, 2020 WL 2415560, at *2.
“If the parties provide little evidence to support their interpretation of a reasonable rate,
the court may use its discretion to determine a reasonable fee.” Addison, 338 F.R.D. at
579 (quoting Ey, 2020 WL 2415560, at *2).
Discussion
Before determining the reasonable fee for Dr. Lattuga’s deposition time in this
case, the Court first addresses timing. Rule 26(b)(4) “does not require payment [of the
expert’s fee] in advance.” Kent v. Starline Cab Corp., No. 03-CV-6140, 2004 WL 251064,
at *1 (S.D.N.Y. Feb. 11, 2004); see also Johnson v. Spirit Airlines, Inc., No. 07-CV-1874,
2008 WL 1995117, at *1 (E.D.N.Y. May 6, 2008) (an expert witness “may not insist on
advance payment”). And, courts in this Circuit have held that determination of an expert’s
deposition fee typically should be made after the expert has been deposed. See Ramos,
2025 WL 3062906, at *2 (collecting cases). As one court explains, it may be “difficult or
impossible to determine in advance of the deposition what fee might be reasonable, as
that may turn, in part, on evidence adduced during and the duration of the deposition.”
Kent, 2004 WL 251064, at *1. For instance, what fee is reasonable may vary depending
on whether the expert provides evasive or non-responsive answers, or whether the
deposition was improperly prolonged by speaking objections from counsel defending the
deposition. As another example, questions may be asked of the expert at deposition that
could elicit information material to one or more of the relevant factors, such as to what
amount the expert actually receives as a customary fee as compared to what his proffered
fee schedule provides.
At the same time, however, there is a very practical reason to determine a
reasonable fee in advance of a deposition – the party seeking discovery should be
allowed to make an informed cost-benefit analysis as to whether deposing the expert is
worth the cost. In its discretion, the Court finds that the best course, at least in this
instance, is to make an informed ruling in advance. This ruling is made without prejudice
to either party requesting, after the deposition is completed, adjustment of the fee in the
event of something untoward. In determining the fee now, the Court will assume that the
deposition proceeds in regular fashion and that information provided by Dr. Lattuga is
consistent with the credentials set forth in Plaintiff’s opposing letter.
According to the information provided, Dr. Lattuga is well-credentialed, expertly
trained, and suitably educated in the area of expertise relevant to testimony. See
Broushet, 274 F.R.D. at 433 (finding that “Dr. Lattuga is clearly an experienced
orthopedist and spine surgeon”). The testimony he will provide concerns technical and
specialized medical knowledge.3 The Court also takes into account that the cost of living
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in the New York metropolitan area is relatively quite high. But neither those nor any other
factors justify the fee that Plaintiff seeks for Dr. Lattuga.
First, Plaintiff has not provided any basis for why Dr. Lattuga should receive three
times as much compensation per hour ($1,500) for actual deposition time as compared
to time spent preparing for the deposition ($500 per hour).4 Nor has Plaintiff cited any
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case law to support that framework. To the contrary, the one case on which Plaintiff relies
to support the rates sought for Dr. Lattuga found that charging different rates for time
spent being deposed and time preparing to be deposed are “not supported by the case
law in this Circuit,” and that instead “courts award the same per hour fee for preparation
as they do for the time being deposed.” Broushet, 274 F.R.D. at 434. Plaintiff also has
not cited any case in which a court granted a rate anywhere approaching $1,500 per hour
for an orthopedic surgeon’s time providing deposition testimony. Case law instead
indicates that Dr. Lattuga’s hourly rate for preparation – $500 – is far closer to a
reasonable rate for time spent both preparing for and giving deposition testimony. In
Ramos, for instance, which was decided less than a year ago, the court found “that there
is authority to support a rate of $400 to $500 per hour for an orthopedic surgeon’s
3 Neither party, however, has provided information about whether Dr. Lattuga’s testimony
and opinion is based on knowledge and analysis that is relatively routine or relatively
complex for his specialty.
4 Plaintiff faults Defendants for providing “no affidavit, survey, or other evidence
establishing prevailing rates charged by comparable spine surgeons in the New York
metropolitan area” and failing to “present any evidence showing that Dr. Lattuga’s
customary fee differs materially from what similarly credentialed specialists charge for
deposition testimony.” (Dkt. 41 at 2.) But Plaintiff has provided no such evidence
supporting the fee requested for Dr. Lattuga, and it is Plaintiff’s, not Defendants’, burden
to demonstrate the reasonableness of Dr. Lattuga’s expert’s rates. See Ey, 2020 WL
2415560, at *2; Addison, 338 F.R.D. at 579.
deposition testimony and preparation.” See Ramos, 2025 WL 3062906, at *3 (collecting
cases).
Some of the case authority cited by Ramos is of relatively recent vintage. Addison,
which set a fee of $500 per hour for both testimony and preparation, is one such example.
338 F.R.D. at 579; see also, e.g., Souvenir v. Jordan, No. 20-CV-9335, 2022 WL
12399329, at *3 (S.D.N.Y. Oct. 21, 2022) (finding rate of $450 per hour reasonable for an
orthopedic expert’s two hours of deposition testimony and one hour of preparation). But
Ramos also relies on older cases dating from as early as 2008. See Ramos, 2025 WL
3062906, at *3. The Court agrees with Plaintiff that “expert witness rates ‘could hardly be
expected to remain static’ over lengthy periods of time.” (See Dkt. 41 at 2 (quoting
Broushet, 274 F.R.D. at 434).) Plaintiff reasonably argues that because a court found
$400 a reasonable hourly rate in 2011, Dr. Lattuga should now, 15 years later, be paid at
a higher rate. But even considering the passage of time, and Dr. Lattuga’s enhanced
credentials and experience, the $1,500 per-hour rate Plaintiff seeks for Dr. Lattuga’s
deposition time is far from reasonable.
Rather, the Court finds, based on all the circumstances, that a fee of $650 per hour
– for both testimony time and no more than one hour of preparation time – is reasonable.5
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The Court starts with the proposition that $400 per hour was a reasonable rate for both
Dr. Lattuga’s testimonial time and preparation time in 2011. Adjusted for inflation, that
rate is approximately equivalent to $600 as of August 2026.6 Recognizing that Dr.
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5 As noted above, Plaintiff seeks payment for at most one hour of preparation time.
6 CPI Inflation Calculator, U.S. BUREAU OF LABOR STATISTICS, bls.gov/data/inflation-
calulator.html (last visited September 10, 2026).
Lattuga has acquired additional experience and accomplishments over the 15 intervening
years, the Court finds it appropriate to adjust the fee upward to $650 per hour.
Conclusion
For the foregoing reasons, Defendants’ motion to set a reasonable fee for Dr.
Lattuga’s deposition is granted in part and denied in part. Dr. Lattuga shall be paid a
reasonable fee of $650 per hour for both giving and preparing for his deposition, although
payment for preparation time shall be capped at one hour. This order is without prejudice
to the parties’ rights to apply, within 14 days after the completion of Dr. Lattuga’s
deposition, for an adjustment of the fee based on changed circumstances. To the extent
not discussed above, the Court has considered the parties’ arguments and found them to
be either moot or without merit.
SO ORDERED.
UNITED STATES MAGISTRATE JUDGE
Dated: September 11, 2026
New York, New York
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