223 F.R.D. 85 | N.D.N.Y. | 2004
MEMORANDUM DECISION AND ORDER
As we near the close of discovery in this case, a disagreement has arisen regarding the scope of inquiry during a deposition of a treating physician, who, incidentally, has not been retained as an expert, and whether this treating physician is entitled to a reasonable fee from the deposing party for the testimony to be provided at the deposition.
I. FACTS
On August 25, 2003, the Plaintiff responded to an Interrogatory seeking the identity of experts, by stating that she had not retained any experts but would be calling three of her treating physicians and health care providers as witnesses. Those three treating physicians were identified as Drs. Gail Casals, Shirley McMorris and Marry Panzetta. From all accounts, we presume that the Plaintiffs medical records either preceded or accompanied this disclosure. All three doctors were served, respectively, by the Defendants with a subpoena to provide testimony during a deposition, paid the statutory witness fee pursuant to 28 U.S.C. § 1821, and were deposed. It appears from the record that Dr. Panzetta, a board certified psychiatrist, was the last to be deposed, and it is from her deposition that the issues before us evolve.
Dr. Panzetta was deposed on April 19, 2004, for 1A hours. The Defendants were intending to complete this deposition on a subsequent date when they were advised by Dr. Panzetta that she would not return to complete the deposition unless she was paid a reasonable fee; in this regard, she quoted to Defendants a retainer of $2,025 in connection with her preparation and attendance at the deposition. Obviously, the Defendants refused to pay such fee, and the Plaintiff is unwilling to pay this fee either. The Plaintiffs perspective is that the Defendants were provided all of her medical records and it was their strategic election to seek these depositions, therefore, they should pay the fee. The Defendants are not willing to relent on this issue and wish to compel Dr. Panzetta to complete her deposition, which they have represented to the Court would not last longer than 1]A hours, at best.
In addition to whether this treating physician is entitled to a fee for being deposed, the Plaintiff submits that the Defendants at the April 19th deposition of Dr. Panzetta’s were
II. DISCUSSION
A Expert Witness v. Fact Witness
In order for this Court to decide whether Dr. Panzetta is entitled to a reasonable fee, we must decide the nature of this witness. The first issue then for this Court is to consider whether a treating physician, for testimonial purposes, is either an expert witness, a fact witness, or a combination of both. Depending upon that determination, we must then ascertain what discovery rule are applicable. Or, conversely, we may need to look first to the applicable discovery rules set forth in the Federal Rules of Civil Procedure as determinative on the status of a treating physician in terms of classifying the nature of her testimony.
The law is not well developed as to what may and how to define a treating physician, and, for the most part, the distinction between a treating physician being viewed as either an expert or a fact witness is rather opaque. Some have suggested that a treating physician is, in essence, a lay witness, and the basis of her testimony would be found in Fed. R. Evid. 701:
If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
Though it may appear that a treating physician may testify to her perceptions of the party’s medical condition as gleaned from her treatment of her patient and, certainly, her testimony would be helpful in making the details of the treatment clear to the finder of fact, clearly a treating physician’s testimony is far more broader than the opinion permitted by this Rule.
[ ] scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue[.] [A] witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of rehable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Fed. R. Evid. 702.
The distinction between a lay witness’s and an expert witness’s opinion is that a lay witness provides an opinion “ ‘resulting] from a process of reasoning familiar with everyday life,’ while [an] expert testimony ‘results from a process of reasoning which can be mastered only by specialists in the field.’ ” Fed. R. Evid. 701 (Advisory Committee Notes, Amendment 2000). And, Rule 701(c) makes it evidently clear that if the opinion provided is based upon “scientific, technical, [and] other specialized knowledge within the scope of Rule 702” then the witness is deemed to be an expert. Wein-stein’s Evidence Manual at § 10.03 (2003). Therefore, we can comfortably conclude that a treating physician’s testimony is governed by Rule 702, rather than Rule 701,
We must next turn to the federal rules on discovery. In 1993, Congress amended Fed. R. Crv. P. 26(a)(2), and by doing so, may have created three separate classes of experts.
Except as otherwise stipulated or directed by the court, this disclosure shall, with respect to a witness who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony, be accompanied by a written report prepared and signed by the witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years, (emphasis added).
If a witness has been retained or specially employed to provide expert testimony, the retaining party must serve an expert report within the time frame set forth in Fed. R. Crv. P. 26(a)(2)(C). Furthermore, whether or not a doctor has been retained, as long as they have been identified as a witness who will provide expert opinion testimony, pursuant to Rule 702, they may be deposed. Fed. R. Civ. P. 26(b)(4)(A). A major distinction then between Rule 26(a)(2) subsections A and B experts is that a retained expert, under subsection B, must disclose his opinion in a written report before being deposed. Id.
Generally speaking a treating physician testifies only to the care and treatment of a patient (Salas v. United States, 165 F.R.D. 31, 33 (W.D.N.Y.1995)), but must they submit a written report in addition to the
B. Scope of Testimony
Now that we have classified a treating physician as one of those types of experts recognized under Fed. R. Civ. P. 26(a)(2) and Fed. R. Evid. 702, we must now determine the scope of her testimony. To reiterate, we must remain mindful that the scope of the testimony is not bound by the strict disclosure requirements of Fed. R. Civ. P. 26(a)(2)(B). Zanowic v. Ashcroft (I), 2002 WL 373229, at *3; Salas v. United States, 165 F.R.D. at 33. However, we cannot ignore the pertinent observation that the medical reports of the course of treatment are, in essence, an early disclosure of opinions before a deposition or testimony is conducted.
Many courts within this Circuit agree, as they do with other district courts throughout the country, as to the scope of the testimony to be provided by a treating physician, whether by deposition or at trial. It is indeed certain that a treating physician, who has not complied with the reporting requirement of Rule 26(a)(2)(B), should not be permitted to render opinions outside the course of treatment and beyond the reasonable reading of the medical records. McEachron v. Glans, 1999 WL 33597331, at *4 (finding that the doctor cannot testify as to information gained outside the scope of treatment). But most, if not all, courts that have considered this issue recognize that a treating phy
The Plaintiff has challenged the inquiries made by the Defendants of Dr. Panzetta in the initial segment of her deposition as improper and beyond the scope of a permitted interrogation of a treating physician. The Court has reviewed the transcript of this segment of the deposition and cannot disagree with the Plaintiff more. All of the questions asked are permitted as confirmed by the ease precedents set forth above. They sought, inter alia, explanations of the numerous abbreviations employed by the doctor; the numerous statements received during the course of treatment; the psychological diagnoses, and whether other critical information about the Plaintiff, if known by the treating physician, would have impacted or changed the diagnoses. Admittedly, several inquiries appear to peer into materials outside the scope of the doctor’s notes, but those lines of inquires were not pursued nor fully explored. During a telephone conference held on June 1, 2004, on this issue, the Defendants assured the Court that any further inquiries would be primarily concerning new notes just revealed to them, as to causation and diagnosis. Since the Defendants are entitled to this deposition, pursuant to Rule 26(b)(4)(A), they will be permitted to continue with their deposition of Dr. Panzetta and may ask question about: the course of treatment; determinations, opinions and diagnoses; prognosis; pain and suffering; probable cause of the injury; past and present conditions; and everything acquired during the scope of treating Brenda Lamere.
C. Reasonable Fee v. Statutory Fee
Where there is near unanimity on the scope of a treating physician’s testimony, none can be found as to what fee a treating, non-retained physician can receive for a deposition. First, only one circuit court has ruled on this issue. Irons v. Karceski, 74 F.3d 1262 (D.C.Cir.1995). The Second Circuit and other circuits have not considered
One pervasive view is that a treating physician is no different from any other fact witness and is not entitled to more than the $40 authorized by 28 U.S.C. § 1821.
But this Court finds itself in the opposing camp and submits that treating physicians are entitled to a reasonable fee, though in drawing this conclusion we are not entirely relying upon the analysis of those courts ruling similarly. In finding that a treating physician was entitled to a reasonable fee, the court in Bujnicki v. American Paving, laid the blame for bearing this expense at the feet of the defendants who exercised then-right to a deposition. 2004 WL 1071736, at *19. It was their strategic decision not to rely upon the medical records and pursue a deposition. Since they “gained valuable information to enable them to assess the plain
Contrary to the courts in Brundidge, DeR-ienzo, and Mangla, United States Magistrate Judge Heckman found that treating physicians are entitled to a reasonable fee pursuant to Rule 26(b)(4)(C). Coleman v. Dydula, 190 F.R.D. 320, 323-24 (W.D.N.Y.1999) (finding at $250 per hour was a reasonable fee) (citations omitted);
In conjunction with finding that the testimony enters through Rule 702, we have also found above that the treating physician is an expert witness as contemplated within the meaning of Fed. R. Civ. P. 26(a)(2)(A). See Giladi v. Strauch, 2001 WL 388052, at *9. Lest we forget, a Rule 26(a)(2)(A) expert can provide opinions consistent within the source of treatment without the requirement of a written report as demanded in Rule 26(a)(2)(B). Yet, to solidify our rationale, we turn to Rule 26(b)(4)(C) itself and the corresponding Advisory Committee Notes.
First, as we have already identified, Rule 26(b)(4)(A) gives a party the right to depose an expert, which includes a treating physician.
Unless manifest injustice would result, (i) the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under this subdivision; and (ii) with respect to discovery obtained under subdivision (b)(4)(B) of this rule the court shall require the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert.
Under this statute’s purview, it is rather clear to us that an expert is entitled to a reasonable fee from the party seeking the discovery, no matter if they are retained or not. Reading all of these Rules together, they require payment of a reasonable fee to all experts who are disclosed under Rule 26(a)(2)(A) and deposed under Rule 26(b)(4) — “irrespective of whether they are retained experts, and irrespective of whether they are required to submit a report under Rule 26(a)(2)(B).” Hoover v. United States, 2002 WL 1949734, at *8 (N.D.Ill. Aug. 22, 2002). Stated another way, which should not escape us, it is not the reporting requirement that generates a reasonable fee be paid but, rather, the deposition process itself, which blankets all experts. Id. at *7.
What is deemed a reasonable fee under these circumstances is not so apparent either. Dr. Panzetta has advised Defendants that she seeks a retainer of $2,025 before she will continue with her deposition. This retainer, presumably, considers the hours she has already been deposed (1]£ hours), the anticipated hours remaining (approximately 2 hours) to complete the deposition, and some time for preparation. Under these circumstances, the retainer fee does not appear to be reasonable. We asked the Plaintiffs attorney to ascertain what would be Dr. Pan-zetta’s customary hourly rate and we have been informed that it is $185 per hour. The determination of a reasonable fee and for what services, including preparation, falls solely within this Court’s province. New York v. Solvent Chem. Co., Inc., 210 F.R.D. 462, 2002 WL 31190938 (W.D.N.Y. Sept.27, 2002); Am. Steel Products Corp. v. Penn Cent. Corp., 110 F.R.D. 151 (S.D.N.Y.1986) (finding that it is quite reasonable to expect that preparatory time to respond to discovery, whether by interrogatory or deposition, is a reasonable expense for the deposing party to assume.). Therefore, the Court will give Dr. Panzetta credit for an V¡¿ hours for preparation and 3% hours for testifying at a deposition, which totals to 5 hours, should the total time for the deposition take that long. Five hours at the rate of $185 totals $925. If the deposition takes longer than the estimate provided by the Court, then the cost of the deposition will increase exponentially. Conversely, if less time is spent conducting the deposition, the fee decreases accordingly. This fee for the deposition of Dr. Panzetta shall be shared equally between the State Defendants and Defendant Tuck, unless they agree otherwise. If however, the Defendants do not pursue a continuation of the deposition, in the interest of justice, no fee needs to be rendered for the deposition conducted thus far.
CONCLUSION
Based upon all of the foregoing reasons, the Court finds that the Defendants are entitled to a continuation of their deposition, interrogating the treating physician on matters consistent with this Memorandum Decision and Order, and paying a reasonable fee for such deposition. Therefore, it is
ORDERED, that the Defendants may interrogate Dr. Panzetta to the extent consistent with this Memorandum Decision and Order; and it is further
ORDERED, that Dr. Panzetta is entitled a reasonable fee consistent with this Decision-Order. Prior to the deposition, the Defendants shall pay Dr. Panzetta the sum of $555. In the event, the deposition exceeds the time estimated by the Defendants to complete the deposition, the Defendants shall pay Dr. Pan-zetta the balance within thirty (30) days of the conclusion of the deposition.
SO ORDERED.
. The only reported case we found that has referred to a treating physician as a lay witness is Greenfeld v. Memorial Sloan Kettering Hospital, 2000 WL 351395, at *6 (S.D.N.Y. Apr. 5, 2000): “What is meant by ‘lay witness' is that these are witnesses that have not examined [a patient] or his medical conditions with the specific purpose of rendering an opinion for this litigation.” As this decision will establish, we partially disagree with this specific assessment.
. Notably, if a witness is identified as a lay witness, disclosure of such witness is governed by Fed. R. Civ. P. 26(a)(1) and (3).
. This may be a trivial point, though over looked in other discussions, but Fed. R. Civ. P. 26(a)(2) is entitled, Disclosure of Expert Testimony. This is just another, though minute, indication that probably treating physicians are considered expert witnesses as opposed to being solely fact witnesses.
. Normally, a retained medical expert reviews other materials outside the treatment modality in rendering her opinion, and based upon that review, as well as the medical records, may render more expansive opinions on the issues germane to the litigation. Thus, if a treating physician is called upon to review similar materials outside the four corners of her medical records and to opine greater than what is reflected in those medical records, we then would be of the view that such treating physician now falls with the parameters of Fed. R. Civ. P. 26(a)(2)(B), and a report is required. McEachron v. Glans, 1999 WL 33597331, at *4.
. Whether the Defendants can complete the breadth of this interrogation within the self-imposed time constraints is rather difficult to project. However, the deposition belongs to the Defendants to conduct as they see fit within the parameter set by this Memorandum Decision and Order and, of course, the Federal Rules.
. A well read treatise on federal practice has similarly recognized that there is a split of authority on the issue of whether fact witnesses akin to treating physicians are entitled to a reasonable fee. 6 James Wm Moore et al., Moore's Federal Practice, § 26.80[3] (3d Ed. 2003). Taking a stance on this lack of consensus, this treatise opines that ”[t]he better view is that such fact witnesses are generally entitled to the statutory witness fee.” Id. We do accept MOORE’S posit as to fact witnesses but do not adopt it when it extends to treating physicians.
. 28 U.S.C. § 1821 reads, in relevant part, as follows: (a)(1) Except as otherwise provided by law, a witness in attendance at any court of the United States, or before a United States Magistrate Judge, or before any person authorized to take his deposition pursuant to any rule or order of a court of the United States, shall be paid the fees and allowances provided by this section. (2) (omitted), (b) A witness shall be paid an attendance fee of $40 per day for each day's attendance. A witness shall also be paid the attendance fee for the time necessarily occupied in going to and returning from the place of attendance at the beginning and end of such attendance or at any time during such attendance.
. This Court has also found persuasive, as did Magistrate Judge Heckman, the reasoning announced in Haslett v. Texas Indus., Inc., 1999 WL 354227, at *2 (N.D.Tex. May 20, 1999) in that:
Physicians provide invaluable services to the public and should be remunerated for their time when they cannot deliver medical care. They often have substantial overhead costs that they incur whether they are creating a patient or testifying about one. Litigators and their clients typically obtain physician testimony by deposition rather than by imposing the additional burdens associated with attendance at trial. They also respect the need to compensate physician-witnesses to the extent necessary to cover their overhead costs and to pay them a fee commensurate with their professional standing and special expertise.
Coleman v. Dydula, 190 F.R.D. at 323-24.
It should also be duly noted that likewise within the Northern District of New York, especially with regard to state court practice, it is the practice to compensate a treating physician for his time whether at the deposition or at trial by providing a reasonable fee, though not universally honored. Plaintiff’s counsel's experience has been that treating physicians are entitled to compensation, whereas the Defendants' attorneys, one current and the other a former Assistant Attorney General, have not had similar experiences.
. Fed. R. Civ. P. 26(b)(4)(A) reads as follows:
A party may depose any person who has been identified as an expert whose opinions may be presented at trial. If a report from the expert is required under subdivision (a)(2)(B), the deposition shall not be conducted until after the report is provided.
Extrapolating on this point, the Advisory Committee notes:
[P]aragraph (4)(A) is revised to provide that experts who are expected to be witnesses will be subject to deposition prior to trial, conforming the norm stated in the rule to the actual practice followed in most courts, in which depositions of experts have become standard. Concerns regarding the expense of such depositions should be mitigated by the fact that the expert's fees for the deposition will ordinarily be borne by the party taking the deposition. The requirement under subdivision (a)(2)(B) of a complete and detailed report of the expected testimony of certain forensic experts may, moreover, eliminate the need for some such depositions or at least reduce the length of the depositions. Accordingly, the deposition of an expert required by subdivision (a)(2)(B) to provide a written report may be taken only after the report has been served.
Fed. R. Civ. P. 26(b)(4)(A) (Advisory Committee Notes 1993 Amendment).
. This Memorandum Decision and Order will not consider whether Drs. Casals and McMorris are entitled to a reasonable fee nor the previous Vt hours deposing Dr. Panzetta. Their depositions are water "over” the dam, so to speak. This Decision and Order pertains solely to the narrow facts generated by Dr. Panzetta's refusal to continue with her deposition unless she received a reasonable fee.
