Herzfeld & Rubin, P.C.- Publications

Products Liability Fees for 'Treating Physician' Depositions By Michael Hoenig - New York Law Journal - Monday, October 18, 2004	Print article

Is a treating physician a kind of lay witness, testifying to actual facts of diagnosis and treatment unfolding from the exercise of his or her expertise, or an expert witness? Lots of practical consequences flow from the answer to this seemingly simple question. For example, in federal practice, testifying experts must, as part of a party's disclosure, provide a written report containing a complete statement of all opinions to be expressed and the basis and reasons for each. A lay witness does not. The testifying expert also provides a list of all publications written in the last 10 years and a list of cases in which the witness testified as an expert at trial or deposition within the preceding four years. A lay witness does not.

Granted a treating doctor normally is considered an "expert" in his or her field. But when all medical records are produced or made available and the treating physician merely will recite what happened and what the records reveal, is that testimony to be considered mere factual matter (albeit of a technical nature) or is it testimonial expertise? Keep in mind that a treating doctor, identified as a witness who will provide expert opinion testimony pursuant to Federal Evidence Rule 702, may be deposed pursuant to Federal Procedure Rule 26(b)(4)(A).

And, if the treating physician is to be deposed, does he or she get an expert witness fee or only the established witness attendance fee of $40 set by 28 U.S.C. section 1821? Believe it or not, the answers to these practical questions are not so clear-cut. Courts are split. A recent decision by U.S. District Judge Thomas J. McAvoy of the Northern District of New York briefly analyzes these issues and affirms a decision by Northern District of N.Y. Magistrate Judge Randolph F. Treece which collected and discussed much case law on both sides. These informative opinions were issued in a case called Lamere v. N.Y. State Office for the Aging,¹ a dispute about whether a board certified treating psychiatrist, who had been partially deposed, had to be paid a reasonable expert witness fee in order to complete the deposition. Defendants and plaintiff were unwilling to pay the fee.

Fee Demanded

Here are the facts in a nutshell. Plaintiff answered an interrogatory asking identity of her experts by saying she had not retained experts but would be calling three of her treating physicians as witnesses. Defendants served each with a subpoena to provide deposition testimony, paying the statutory witness fee. Dr. P, a psychiatrist, was the last to be deposed. The proceeding lasted 1-1/2 hours with defendants intending to complete the deposition at a later date. Dr. P advised them that she would not return unless she was paid a reasonable fee and quoted a retainer of $2,025 to cover preparation and attendance. The impasse reached Magistrate Judge Treece who framed the issue: "whether a treating physician can command a reasonable fee much like an identified expert, or is relegated to receiving the established witness attendance fee . . . ?"² First, we will review highlights of the Magistrate's decision and then Judge McAvoy's.

To answer this question Magistrate Judge Treece had to decide the nature of this witness and then which discovery rule was applicable. He found the law was "not well developed" as to how to define a treating physician. Indeed, the expert/fact witness distinction for these professionals was "rather opaque." Although the lay witness designation has been suggested by some,³ the court deemed a treating doctor's testimony far broader than the lay opinion permitted under Federal Evidence Rule 701. Certainly medical facts are the subjects of the testimony. But, said the court, "we cannot completely limit a treating physician to solely factual testimony." A treating doctor is a person with specialized knowledge who, in the scheme of her physician duties, provides opinions in the process of treating her patient. In this respect the doctor's expertise is better viewed within the framework of Evidence Rule 702.⁴

Treating Versus Expert Doctors

Generally speaking, treating doctors testify only to the care and treatment of a patient. Must they submit a written report in addition to the medical records they kept as to the patient's treatment? Normally, an expert's report is due prior to testimony when the doctor is retained in anticipation of litigation or preparation for trial. But as Rule 26(a)(2)'s Advisory Committee Notes observe, an exception is carved out for treating physicians: "treating physicians can be deposed or called to testify at trial without the requirement of a written report." Thus, treating doctors are neither retained nor specially employed experts, unless they were specifically retained for such litigation purposes.⁵

As one court has stated, "[Whether] a physician is a treating or consulting physician appears to turn on why the patient saw the physician — — for treatment or for testimony."⁶ Magistrate Judge Treece also cites McEachron v. Glans,⁷ holding that treating physician testimony is not governed by the rule requiring an expert's report as to matters within the normal scope of the physician's treatment of the patient; and also Brundridge v. City of Buffalo,⁸holding that doctors testifying to their personal consultation with their patient need not be disclosed pursuant to Rule 26(a)(2)(B).⁹

When, however, the doctor's testimony would extend beyond facts and opinions characteristically related to the patient's care and treatment, the doctor may be required to provide a written report as mandated by Rule 26(a)(2)(B).¹⁰ In Magistrate Judge Treece's analysis, a treating physician is an expert witness for Evidence Rule 702 purposes. He or she must be identified for the purpose of being subject to further disclosures such as a deposition or interrogatories but does not have to provide a written report before being deposed or testifying at trial.¹¹ Conversely, however, a treating physician who has not provided an expert report "should not be permitted to render opinions outside the course of treatment and beyond the reasonable reading of the medical records."¹²

Defendants clearly were entitled to depose Dr. P and, thus, were permitted to continue with their deposition. However, this squarely raised the fee question. Magistrate Judge Treece found no unanimity on what fee a non-retained treating physician can command for a deposition. Only one circuit court has ruled on the issue.¹³ District courts within the Second Circuit "are split down the middle on what would be the appropriate fee . . . ." There appears to be a lack of national consensus as well. The Moore's Federal Practice treatise opines that "[t]he better view is that such fact witnesses are generally entitled to the statutory witness fee" — — a position on treating physicians with which Magistrate Judge Treece disagrees.¹⁴

Courts holding that treating physicians are no different from other fact witnesses essentially reason that such doctors are not "experts" within Procedure Rule 26(a)(2)(B) and (b)(4)(C). Merely because they opine on many aspects of treatment does not make them "experts." For these courts, experts are those "retained for the purpose of trial and their opinions are based on knowledge acquired or developed in anticipation of litigation for trial."¹⁵ Treating physicians are essentially fact witnesses who should get the $40 fee authorized by federal statute, not more. An example of this line of cases is U.S. District Court for the Southern District of New York Judge Constance Baker Motley's opinion in Derienzo v. Metropolitan Transit Authority,¹⁶ where the court denied plaintiff's motion to compel defendants to pay six physicians their reasonable fees. Judge Motley held (citing much case law) that, to the extent these treating physicians "will speak to their own consultations with plaintiff, they are not 'experts' under the auspices of Rule 26 and are therefore limited to the statutory fee.

Magistrate Judge Treece, however, is in the opposing camp. Treating physicians are entitled to a reasonable fee, says the court. A persuasive reason for his view was offered in Coleman v. Dydula,¹⁷ where U.S. Magistrate Judge Heckman determined that treating physicians are providing expert opinions pursuant to Evidence Rule 702. This is because doctors bring extraordinary insight into facts which can only be gleaned through their scientific or specialized knowledge. Doctors' opinions often are a matter of art that, once again, derive from specialized knowledge. There is such a dichotomy between a doctor and a lay witness that doctors "can only be seen as experts," unless they are mere witnesses observing an occurrence much like non-doctors would (such as a car accident).¹⁸ Also deemed persuasive was the reasoning in Haslett v. Texas Indus., Inc.,¹⁹ quoted in Coleman, that physicians "provide invaluable services to the public and should be remunerated for their time when they cannot deliver medical care."

Further, the Advisory Committee Notes on Rule 26(b)(4)(C) seem to make it clear that an expert is entitled to a fee, no matter if retained or not. Stated another way by one court, "it is not the reporting requirement that generates a reasonable fee be paid but, rather, the deposition process itself, which blankets all experts."²⁰ In this case a reasonable fee for Dr. P was not so apparent. She sought a retainer of $2,025 covering the 1-1/2 hours deposition given plus 2 hours to complete the deposition plus preparation time. This was deemed not reasonable. Magistrate Judge Treece inquired as to Dr. P's customary hourly rate which was $185 per hour. In exercising his discretion, he estimated total time of 5 hours which, at $185 per hour, totaled $925. Should the deposition actually take longer to conclude, the cost should increase exponentially. If less time is spent, the fee should decrease accordingly.

Fee Justified

In affirming the Magistrate's decision, Judge McAvoy seemed rather to focus on the pith and substance of the controversy.²¹ This approach does not coincide entirely with the decision below. Judge McAvoy reasons that the Federal Rules of Civil Procedure contemplate a general category of persons who will give expert testimony (Rule 26(a)(2)(A)) and a subcategory of persons specifically retained for that purpose (Rule 26(a)(2)(B)). The former rule requires disclosure of testifiers under Evidence Rules 702, 703 or 705, whether specially retained for that purpose or not. The latter rule requires disclosure of a written report. Treating physicians, however, need not prepare a written report.²²Whether a written report is required is not the sine qua non of whether a witness is deemed an expert. It is the "substance of the testimony that controls whether it is considered expert or lay testimony."

Rule 26(b)(4)(C) governs payment of a reasonable fee to experts. Any person giving testimony within the purview of Evidence Rule 702 is entitled to a reasonable fee. However, there is no blanket rule that persons, simply because they possess a title, knowledge or a degree, are automatically entitled to a fee. Again, the critical factor is the substance of the testimony. Thus, if a treating physician's testimony is limited to pure observation or an explanation of treatment notes, "then the physician may properly be characterized as a fact witness" and receive only the statutory fee. If, however, the elicited testimony may be considered expert opinion falling under Evidence Rule 702, then the witness is characterized as an expert and entitled to a reasonable fee for time spent in responding to discovery. Here Dr. P was asked some questions that could reasonably be interpreted as calling for opinion testimony requiring specialized skill, experience and training. Therefore, Dr. P was entitled to a reasonable fee.²³

Judge McAvoy's approach essentially looks to the nature of the testimony to be elicited. If it is pure treating-doctor factual material, the physician is essentially a fact witness rather than an expert. He or she gets the statutory fee. If, however, the doctor's testimony to be elicited includes opinions based on specialized skill and knowledge, it may be characterized as expert testimony and a reasonable fee is warranted. This differs from the approach of Magistrate Judge Treece and the line of cases he found persuasive. That view emphasized the doctor's expertise during treatment rendering the factual recitation to be the testimony of an expert entitled to a fee. While the result was the same — — Dr. P was entitled to a reasonable fee — — how the result was reached needs to be noted.

It is somewhat remarkable that this rather simple treating physician question, doubtless confronted many times daily across the nation, is still so controversial. Here, we have summarized Judge McAvoy's decision as well as Magistrate Judge Treece's opinion (published in the F.R.D.) to present the reader with a broader view of this bread-and-butter topic along with references to opposing decisions. Advocates on both sides certainly have some ammunition. However, neither tasteless stratagems to beat treating physicians out of reasonable fees nor the practice of opportunist physicians regularly jacking up their fee demands to lawyers serve to honor the nobility of the respective professions. One thing is clear: the simple question may not necessarily be so simple to answer. Some homework is required.

Michael Hoenig is a member of Herzfeld & Rubin

Endnotes:________________________________________________________________________________________________________

1. 2004 U.S. Dist. LEXIS 13217 (NDNY July 14, 2004) (Judge McAvoy), aff'g Magistrate Judge Treece's decision, 223 F.R.D. 85 (NDNY 2004).

2. See note 1 at 87.

3. The only reported case found by Magistrate Judge Treece referring to a treating physician as a lay witness is Greenfeld v. Memorial Sloan Kettering Hospital, 2000 WL 351395, at *6 (SDNY April 5, 2000).

4. 223 F.R.D. at 87-88.

5. See note 4. at 89 (citing Zanowic v. Ashcroft, 2002 WL 373229, at *2 (SDNY March 8, 2002)).

6. Id. (quoting Zanowic).

7. 1999 WL 33597331, at *3 (NDNY Feb. 24, 1999).

8. 79 F.Supp. 2d 219, 224 (WDNY 1999).

9. Lamere, 223 F.R.D. at 89 (citing also Greenfeld, supra n. 3 (holding treating physician to be lay witness)).

10. Lamere, 223 F.R.D. at 89 (citing Peck v. Hudson City School Dist., 100 FSupp 2d 118, 120-21 (NDNY 2000); Salas v. United States, 165 F.R.D. 31, 33 (WDNY 1995); McEachron v. Glans, 1999 WL 33597331, at *4 (NDNY Feb. 24, 1999)).

11. Lamere, 223 F.R.D. at 89 (citing Hoover v. United States, 2002 WL 1949734, at *6 (N.D. Ill. Aug. 22, 2002)).

12. Lamere, 223 F.R.D. at 89.

13. See note 12 at 90 (citing Irons v. Karceski, 74 F.3d 1262 (D.C. Cir. 1995)).

14. Lamere, 223 F.R.D. at 91 n. 6.

15. See note 14 at 91 (citing cases).

16. New York Law Journal, Jan. 26, 2004, p. 24 (SDNY).

17. 190 F.R.D. 320, 323-24 (WDNY 1999).

18. Lamere, 23 F.R.D. at 92.

19. 1999 WL 354227, at *2 (N.D. Tex. May 20, 1999).

20. Lamere, 223 F.R.D. at 93 (quoting Hoover v. United States, 2002 WL 1949734, at *7 (N.D. Ill. Aug. 22, 2002)).

21. Lamere, 2004 U.S. Dist. LEXIS 13217 (NDNY July 14, 2004) (Judge McAvoy).

22. Citing the Advisory Committee Notes to the 1993 Amendments; Bank of China v. NBM, LLC, 359 F3d 171, 182 n. 13 (2d Cir. 2004).

23. Lamere, 2004 U.S. Dist. LEXIS 13217 at *6 - *7.