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January 14, 2004.

George DeRienzo, Plaintiff, -against- Metropolitan Transit Authority and Metro-North Rail Road, Defendants

The opinion of the court was delivered by: CONSTANCE MOTLEY, Senior District Judge


Plaintiff DeRienzo moves the court to require defendants Metropolitan Transit Authority and Metro-North Railroad to compensate plaintiffs treating physicians for pre-trial depositions as expert witnesses pursuant to Fed.R.Civ.P. 26(b)(4)(C). For the reasons set forth below, plaintiff's motion is DENIED.


  This lawsuit was filed in 2001 under the Federal Employers' Liability Act, 45 U.S.C. § 51, et seq. Plaintiff is a former officer for the Metropolitan Transit Authority ("MTA") who claims he sustained injuries when, during the course of his duties, he slipped and fell down a flight of stairs owned by the MTA's Metro-North Commuter Railroad. He underwent corrective Page 2 back surgery, suffered a pituitary apoplexy and memory loss, and ultimately retired from the Force due to disability. The relationship of the fall to plaintiff's injuries is the focal point of the litigation.

  During the course of discovery, plaintiff identified six physicians who treated him for his injuries: Dr. Forman, Dr. Cristofaro, Dr. Delbello, Dr. Roth, Dr. Blum, and Dr. Guy. Plaintiff has not identified any of these physicians as "experts" pursuant to the Federal Rules requiring disclosure of experts and an accompanying expert report. See Fed.R.Civ.P. 26(a)(2). Plaintiff has, however, identified Dr. Pikus as his expert medical witness and made the disclosures required under the Federal Rules to permit him to testify as such. According to defendants' review of the expert disclosures and Dr. Pikus' deposition testimony, Dr. Pikus will offer his opinion at trial that plaintiffs back surgery caused the pituitary apoplexy.

  The issue before the court is whether plaintiffs six treating physicians constitute "experts" who are entitled to a fee beyond the $40 per day required by 28 U.S.C. § 1981(b) for the time spent being deposed by defendants.


  Compensation of fact witnesses is governed by 28 U.S.C. § 1821 which provides:
"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."
28 U.S.C. § 1821(b). Compensation of expert witnesses is governed by the Federal Rules of Civil Procedure. Under the Rules, a party may depose any person who has been identified as an expert witness whose opinions may be presented at trial. See Fed.R.Civ.P. 26(b)(4)(A)(B). For expert witnesses, however, "[u]nless 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." Fed.R.Civ.P. 26(b)(4)(C).

  As such, the determining factor for whether plaintiffs six physicians can charge a "reasonable fee", most commonly, their hourly billing rate, or are bound by the statutory fee is whether the physicians are "experts" or fact witnesses.

  "Experts are retained for purposes of trial and their opinions are based on knowledge acquired or developed in anticipation of litigation for trial." Mangala, M.D. v. University of Rochester, 168 F.R.D. 137, 139 (W.D.N.Y. 1996). By contrast, Page 3

"[treating physicians] are witnesses testifying to the facts of their examination, diagnosis and treatment of a patient. It does not mean that the treating physicians do not have an opinion as to the cause of an injury based upon their examination of the patient or the degree of injury in the future. These opinions are a necessary part of the treatment of the patient. Such opinions do not make the treating physicians experts as defined by Rule 26(b)(4)(C)."
Baker v. Taco Bell Corp., 163 F.R.D. 348, 349 (D.Colo. 1995) (treating physicians are not entitled to a fee other than the statutory fee of $40 as a matter of law), cited as authority in Coleman v. Dydula, 190 F.R.D. 320 (W.D.N.Y. 1999) (denying defendant's motion for an order directing physicians to be compensated at the statutory rate on the grounds that plaintiff designated them as experts and expected them to offer expert opinion testimony within the scope of Rule 26(a)(2)(A)), followed by Mangala. M.D.. 168 F.R.D. at 139 (to the extent that a doctor's testimony related to his own care and treatment of plaintiff, he is an ordinary witness under the Federal Rules, not an expert). Accord. Zanowic v. Ashcroft, 2002 WL 826878 (S.D.N.Y. Apr. 30, 2002) (treating physician not entitled to fees other than those prescribed by § 1821). Likewise, a doctor is not precluded from testifying to facts learned and opinions formed in the course of treatment by virtue of the fact that a party did not make the expert disclosures required under Rule 26(a)(2) because the doctor is not an "expert" subject to the Rule. See Zanowic v. Ashcroft, 2002 WL 826878, * 1 (S.D.N.Y. Apr. 30, 2002); Giladi v. Strauch, 2001 WL 388052, *6 (S.D.N.Y. Apr. 16, 2001); Palmieri v. Celebrity Cruise Lines, Inc., 2000 WL 310341 (S.D.N.Y. Mar. 27, 2000); Salas v. United States, 165 F.R.D. 31 (W.D.N.Y. 1995).

  The information before the court regarding the six physicians in question suggests that they will testify to the facts learned and opinions formed in providing plaintiff medical care. To the extent that they will speak to their own personal consultations with plaintiff, they are not "experts" under the auspices of Rule 26 and are therefore limited to the compensation scheme set forth in 18 U.S.C. § 1821.


  Plaintiff's motion to require defendants to compensate plaintiffs six treating physicians for "reasonable fees" ...

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