Monday, February 4, 2019

Court Addresses Apportionment of Costs of Expert Depositions in Federal Court Civil Litigation Matter

In the case of Hunter v. Kennedy, No. 3:17-cv-00007 (M.D. Pa. Dec. 4, 2018 Saporito, Mag. J.), the court addressed discovery disputes involving the apportionment of expert witness fees in a medical malpractice matter. 

According to the Opinion, the case arose out of an incident during which Plaintiff fell from a ladder and injured her left ankle which was allegedly followed by negligent medical care by her healthcare providers. 

During the course of discovery, the parties completed some depositions of expert witnesses and a dispute arose between the parties over the allocation of expert witness fees.

The Defendants filed a Joint Motion for the Apportionment of the Expert Deposition Costs.   More particularly, the issues involved whether the Plaintiff’s treating physician, a podiatrist, was also to be treated as an expert witness, and what, if any, apportionment of her deposition fees should be made amongst the parties.   A secondary issue was whether the deposition fees for the remaining expert witnesses should be apportioned.

Relative to the deposition fees requested by the Plaintiff’s treating podiatrist, the court noted that the Plaintiff had previously designated that doctor as an expert witness by correspondence to all parties in the matter.   The Plaintiff also produced two (2) reports prepared by that doctor.  

In this matter, the court was being asked to decide whether the Plaintiff’s treating podiatrist was deposed as an expert witness or a fact witness and, if the deposition was of the doctor as an expert witness, whether the Defendants were obligated to pay that doctor a reasonable expert witness fee or the statutory witness fee under Federal Rules.  

The Defendants were arguing that, as a treating doctor, the witness was a fact witness rather than an expert witness and that they we were only obligated to pay the statutory $40.00 witness fee under the Federal Rules.    The Defendants argued that the two (2) one (1) page reports issued by this doctor did not satisfy the extensive report requirements relative to expert witness reports under the Federal Rules.  Judge Saporito noted that the Federal Rules of Evidence do not distinguish between lay and expert witnesses, but “rather between expert and lay testimony.”   See Op. at p. 3.

Judge Joseph F. Saporito, Jr.

Federal Magistrate Judge Saporito noted that, under Third Circuit precedent, treating physicians may testify as lay witnesses regarding diagnoses and treatment under some circumstances.  However, the testimony of treating physicians on prognosis and causation will inherently be based upon scientific, technical, or specialized knowledge within the scope of Rule 702 of the Federal Rules of Evidence pertaining to expert testimony.   Accordingly, the court noted that, to the extent a party intends to offer the testimony of a treating physician on issues of prognosis or causation, that party is required to disclose the treating physician as an expert witness under Rule 26(a)(2)(A).  

The court noted that a treating physician is typically treated as a “non-retained” expert subject to less strenuous disclosure requirements as compared to experts specifically retained to testify in a litigation.  

To determine whether a party retained or specially employed a treating physician to supply expert testimony, the relevant test is “whether the treating physician acquired his opinion as to the cause of the Plaintiff’s injuries directly through his treatment of the Plaintiff.”  See Op. at 6.  

Applying the law to the case before him, Magistrate Judge Saporito, found that the Plaintiffs satisfied their disclosure requirements under Federal Rule 26 relative to the treating doctor as a non-retained expert witness.   The judge also ruled that it was clear that the opinions that the treating doctor was expected to offer, as evidenced in her reports, included opinions regarding prognosis and causation which opinions were acquired directly through the doctor’s treatment of the Plaintiff.   Consequently, the court found that the treating doctor had been properly identified as a witness whom that the Plaintiffs intended to use and present expert evidence at trial and that the Plaintiffs had satisfied their disclosure obligation under Rule 26(a)(2)(C).  

Judge Saporito also confirmed that the Federal Rules provide that a party may depose any person who has been identified as an expert whose opinions may be presented at trial.   The rules further provide that, unless manifest injustice would result, the court must require that the parties seeking discovery pay the expert a reasonable fee for time spent in responding to discovery.   The court noted that the Defendants in this matter availed themselves of the Federal Rules in taking the deposition of the treating doctor and had proffered no reason why manifest injustice would be result from requiring them to pay the doctor a reasonable fee for her time spent being deposed.

The court went on to determine that the doctor’s fee request was reasonable. The fee request was $2,500.00 for the first two (2) hours and $750.00 for each additional hour.  

While the court agreed that the fee schedule noted by the doctor was reasonable, the court did not find it reasonable for the doctor to charge the amounts she charged to attend two (2) separate deposition dates as the second deposition date was effectively a continuation of the same deposition that had been adjourned on the first day due to the late hour of the deposition, the late production of medical records, and the difficulty among the parties and the witness in scheduling the second day of the deposition.  

As such, the court directed that the Defendants, as the deposing parties, were responsible for the payment of the doctor’s reasonable expert fee at an amount slightly less than what the doctor was claiming for the two (2) dates. 

As to the second issue regarding the apportionment of fees charged by the other experts in the matter, the court ruled that the method set forth in Rule 26(b)(4)(E) be followed.  Under that Rule, unless manifest injustice would result, the court must require that the parties seeking discovery pay the expert a reasonable fee for the time spent responding to the discovery.  

In so ruling, the court rejected the Defendants’ request that the obligation to pay expert fees for depositions be apportioned between the parties based on their respective percentage of time each side spent examining the expert at the deposition.  
Anyone wishing to review a copy of this decision by the United States Magistrate Judge Joseph F. Saporito, Jr. may click this LINK

I send thanks to Attorney Thomas Foley, Jr. of the Foley Law Firm in Scranton, Pennsylvania for bringing this decision to my attention.  

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