Is a treating physician who is subpoenaed to testify at deposition entitled to be paid his customary expert witness fee?

The court, in Axelson v. HARTFORD INSURANCE COMPANY OF MIDWEST, Dist. Court, D. Nevada 2013, said yes.

The court stated:

Hartford now takes the position that Dr. Elkanich may not be entitled to a fee for his deposition, beyond the $40 witness appearance fee authorized by 18 U.S.C. ยง1821. Hartford argues that Dr. Elkanich was Plaintiff’s treating physician and is not entitled to an expert witness fee for deposition testimony about his examination, diagnosis, treatment or prognosis rendered during the ordinary course of providing medical treatment.

Unlike some other decisions which rely on policy reasons to hold that treating physicians should be paid a reasonable expert’s fee for their depositions, the Hoover court based its analysis on the plain language of the rule and rejected decisions such as Baker v. Taco Bell Corp. as having misread the rule.

Coleman v. Dydula, 190 F.R.D. 320, 324 (W.D.N.Y. 1990) states that in determining what constitutes a “reasonable fee” under Rule 26(b)(4)(C), federal district courts have considered such factors as (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. Neither party has provided substantial information regarding the factors set forth in Coleman. In view of the fact that Defendant’s retained trial expert witness, Dr. Serfustini, charges $1,400 per hour for his deposition, and counsels’ representation that these fees are in line with those charged by similarly qualified expert witnesses in this community, the Court concludes that Dr. Elkanich’s hourly rate of $1,500 for his deposition in this case is reasonable. The Court expresses no opinion as to what the reasonable hourly rate would be for Dr. Elkanich or another similarly qualified physician who was being deposed solely in his or her capacity as a treating physician. Arguably, the reasonable hourly rate may be different if the physician is merely deposed about his examination findings, diagnosis and treatment rendered during the ordinary course of providing patient care.

The Court further orders Defendant to pay Dr. Elkanich $1,500 in advance of his rescheduled deposition. The $1,500 shall cover the first hour of Dr. Elkanich’s deposition. If the deposition exceeds one hour, then Defendant shall pay Dr. Elkanich for the additional time based on an hourly rate of $1,500, i.e. if the deposition goes an additional half hour, Defendant shall pay an additional $750.00. Dr. Elkanich should make himself available for up to two hours of deposition time. Defendant shall promptly pay Dr. Elkanich for any additional compensation that may be owed for the deposition. The Court recommends that Dr. Elkanich and counsel schedule the deposition at a date and time that avoids or minimizes interference with Dr. Elkanich’s medical practice. Finally, Defendant or its counsel are not required to execute a contract or agreement with Dr. Elkanich regarding his deposition. The Federal Rules of Civil Procedure, and this Court’s orders in accordance therewith, govern the conditions under which the deposition is taken. Accordingly,

IT IS HEREBY ORDERED that Plaintiff’s Motion for Protective Order is granted, in part, and subject to the foregoing provisions of this order.