Case Information
*1 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA HAMMOND DIVISION
MARY L. FAFARA and RICHARD )
FAFARA, Individually and as )
parents and natural guardians )
of ANASTHASIA FAFARA, a minor, )
)
Plaintiffs )
) v. ) Case No. 2:03 cv 514
)
JEANNINE McMAHON, D.O., CROWN )
POINT OBGYN, P.C. and ST. )
ANTHONY MEDICAL CENTER, )
)
Defendants )
OPINION AND ORDER
This matter is before the court on the Motion to Compel the Payment of Fees and Costs filed by the defendants, Jeannine McMahon, D.O., Crown Point OB/GYN, P.C., and St. Anthony Medical Center on July 8, 2005. For the reasons set forth below, the motion is GRANTED .
Background
This motion for sanctions is the second time the discovery dispute surrounding the deposition of Dr. Rahul Nath has come before the court. Dr. Nath is one of the plaintiffs' expert witnesses and the physician who treated Anasthasia Fafara, a child whose Erb's Palsy injury precipitated the underlying lawsuit in this case.
In November 2004, Dr. Nath's failure to cooperate at his deposition came before the court in the context of two motions to exclude Dr. Nath as a witness. Because the circumstances of Dr. Nath's behavior were set forth in detail in the January 4, 2005 *2 Order denying the motions to exclude his testimony, the court incorporates the background of that order here. However, several additional facts are critical to the disposition of this motion.
On July 13, 2004, the plaintiffs identified Dr. Nath as an expert pursuant to Federal Rule of Civil Procedure 26(a)(2)(B). On September 20, 2004, counsel for Jeannine McMahon & Crown Point OB/GYN asked plaintiffs' counsel if the plaintiffs would accept service of a subpoena duces tecum for Dr. Nath or if service should be made directly upon him. On September 21, 2004, plain- tiffs' counsel stated that they would accept service for Dr. Nath. (Mot. for Sanctions, Exh. B) Thus, on September 30, 2004, the plaintiffs faxed the subpoena to Dr. Nath's office, with receipt confirmed by his office. The subpoena, which contained a rider in which the defendants requested all of Dr. Nath's 1099 forms reflecting medical consultation or testimony he gave in connection with litigation from 1994 to present, was the subject of his refusal to testify at his deposition in Houston, Texas. At the deposition, plaintiffs' counsel assumed the blame for Dr. Nath's failure to see the rider. (Rahul Nath Dep. p. 13)
Because this court lacked the jurisdiction under Federal Rule of Civil Procedure 37(a)(1) to compel Dr. Nath's deposition in Texas, the only sanction requested by the defendants in November 2004 was that Dr. Nath be excluded as a witness. In response to the motion to exclude, the plaintiffs offered to "pay all of the fees and costs associated with either the failed deposition or a future deposition." (Pl. Resp. to Mot. to *3 Strike, p. 11) However, the court deferred the imposition of other sanctions "until such time as a court with appropriate jurisdiction compels the deposition of Dr. Nath." (January 4, 2004 Order, p. 5)
On April 13, 2005, the defendants filed a motion to hold Dr. Nath in contempt of court in the Southern District of Texas. In response, Dr. Nath argued that he was not properly served with the subpoena or notice of deposition because he was not a re- tained expert, was not represented by the plaintiffs' counsel, and had not authorized plaintiffs' counsel to accept service on his behalf. (Mot. for Sanctions, Exh. F) Because he had not been retained by the plaintiffs, Magistrate Judge Frances H. Stacy of the Southern district of Texas held that Dr. Nath was not prop- erly served.
The defendants now return to this court where they seek payment of the costs and fees associated with the November 2, 2004 failed deposition.
Discussion
This dispute essentially is a question of which party more
appropriately bears the burden of faulty service. Federal Rule
of Civil Procedure 45 governs the issuance of subpoenas to third-
parties for depositions and the production of documents. See
Bueker v. Atchison, Topeka and Santa Fe Railway Company
, 175
F.R.D. 291, 292 (N.D. Ill. 1997). Rule 45(b) states that "[s]er-
vice of a subpoena upon a person named therein shall be made by
delivering a copy thereof to such person . . . ." The Rule
*4
further contemplates that the party who issues a subpoena also
bears the burden of serving it. See Rule 45(c)(1). However,
when a case requires medical testimony, the party presenting that
testimony bears the burden of disclosing the names of retained
medical experts and treating physicians and also becomes the
primary contact for those experts with respect to opposing
counsel. See
Musser v. Gentiva Health Services
,
The plaintiffs attempt to avoid the sanction of costs and fees associated with Dr. Nath's failed deposition by arguing that the defendants, rather than the plaintiffs, had the responsibil- ity to determine the proper method of service. Three facts counsel against this conclusion. First, while the plaintiffs' statement of law is technically true, the defendants did attempt to determine the proper method by specifically asking the plain- tiffs' counsel which method of service was correct for Dr. Nath. Plaintiffs' counsel explicitly assumed responsibility for ser- vice. Based on the plaintiffs' agreement to accept service, the defendants had no reason to contact Dr. Nath directly. Second, the plaintiffs' counsel stated that the failed service was the plaintiffs' fault during the deposition. Third, the plaintiffs offered to pay for the fees and costs associated with the failed *5 deposition in place of having Dr. Nath's testimony excluded entirely.
Although the court previously determined that striking the
testimony of Dr. Nath would be too harsh a sanction under the
circumstances, the plaintiffs are not entitled to avoid all
liability for the heavy costs caused by their expert witness'
refusal to testify. See
Travelers Property & Casualty Corpora-
tion v. General Electric Company
,
_______________
For the foregoing reasons, the Motion to Compel the Payment of Fees and Costs filed by the defendants, Jeannine McMahon, D.O., Crown Point OB/GYN, P.C., and St. Anthony Medical Center on July 8, 2005, is GRANTED . The defendants shall file an affidavit in support of their fees and costs by December 2, 2005.
ENTERED this 28 th day of November, 2005 s/ ANDREW P. RODOVICH United States Magistrate Judge