Steven Babitsky ,Esq.

The US District Court D. Kansas dealt with a sexual harassment and retaliation claim.

The treating physician was called to testify at deposition. The defense offered to pay $40, the statutory “fact witness rate.”

The court rejected this attempt and ordered payment for the doctor’s time.

The court stated:

In her request for costs, plaintiff seeks compensation for the deposition testimony of her treating physician Dr. Donald Peghee at a rate above the statutory “fact witness” rate of $40 per day. See 28 U.S.C. § 1821. Defendant challenges this request, arguing that Dr. Peghee is not entitled to anything more than the fact witness fee. Defendant acknowledges that courts in this district have adopted the position that a treating physician, regardless of whether the physician is designated as an expert, is entitled to his or her reasonable fee for deposition testimony because the testimony of a treating physician necessarily involves scientific knowledge and observations. See Johnson v. Kraft Foods North Am., 2007 WL 734956, at *3 (D. Kan. 2007); Watson v. Taylor, 2005 WL 8160685, at *1 (D. Kan. 2005); Wirtz v. Kansas Farm Bureau Services, Inc., 355 F. Supp. 2d 1190, 1211 (D. Kan. 2005). Nonetheless, defendant asserts that Dr. Peghee’s testimony was more akin to the testimony of a fact witness and that his testimony in this case was not based on any scientific knowledge or specialized information. But that argument misstates the appropriate analysis that courts in this district have utilized in determining that treating physicians should ordinarily be allowed a reasonable fee beyond the $40 statutory limit. As explained by Judge O’Hara in Watson v. Taylor:

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 treating 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.

2005 WL 8160685, at *1 (quoting Harvey v. Shultz, 2000 WL 33170885, at *2 (D. Kan. 2000)). The specific nature of the treating physician’s testimony, then, is not necessarily pertinent to the issue of whether the physician is entitled to compensation beyond the fact witness fee. In sum, the court rejects defendant’s argument and finds that Dr. Peghee’s fee is reasonable and appropriate.

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