The opinion of the court was delivered by: CONSTANCE MOTLEY, Senior District Judge
MEMORANDUM OPINION AND ORDER
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
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
"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,
"[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" ...