The opinion of the court was delivered by: THOMAS McAVOY, District Judge
MEMORANDUM DECISION and ORDER
Defendants appeal Magistrate Judge Randolph Treece's June 29,
2004 Order insofar as it directed Defendants to pay one of
Plaintiff's treating physicians, Dr. Mary Panzetta, the
reasonable fee ordinarily paid to expert witnesses, as opposed to
the statutory fee paid to lay witnesses, for her deposition
testimony. For the following reasons, Magistrate Judge Treece's
Order is affirmed.
Plaintiff Brenda Lamere commenced the instant action alleging
that she was discriminated against on account of her gender and
retaliated against for engaging in protected activity. During the
course of discovery, Plaintiff identified Dr. Mary Panzetta
("Panzetta") as one of her treating physicians. Plaintiff did not
identify Panzetta as an expert witness and has not specifically
retained any experts in connection with this litigation.
Plaintiff produced to Defendants her medical records. Defendants
then issued a subpoena to take Panzetta's deposition. Panzetta
was paid the statutory witness fee pursuant to 28 U.S.C. § 1821.
Panzetta appeared for a deposition, which was limited to one and
one-half hours to accommodate her. Defendants intended to
complete the deposition at a later time. Defendants were
rebuffed, however, when Panzetta stated that she would not return
to complete the deposition unless she was paid a reasonable fee,
which she claimed to be $2,025.00. Defendants refused to pay the
fee. This matter was then brought before Magistrate Judge Treece.
Magistrate Judge Treece held that because a physician's opinion
testimony is based on scientific, technical, and other
specialized knowledge within the scope of Rule 702, and not on a process of reasoning familiar with everyday life,
the witness must be deemed an expert. Magistrate Judge Treece
further concluded that, because Panzetta was not specifically
retained to give expert testimony, Plaintiff was not required to
serve an expert report pursuant to Fed.R.Civ.P. 26(a)(2)(B),
but the lack of any requirement to serve an expert report does
not diminish from the fact that Panzetta still qualifies as an
expert. Compare Fed.R.Civ.P. 26(a)(2)(A) (requiring the
disclosure of the identity of any experts) with 26(a)(2)(B)
(requiring a report from a witness retained to provide expert
testimony). Magistrate Judge Treece ordered Defendant to pay
Panzetta a reasonable fee.
District courts review a magistrate judge's rulings on
non-dispostive motions, such as discovery issues, under the
clearly erroneous or contrary to law standard. Fed.R.Civ.P.
72(a); 28 U.S.C. § 636(b)(1)(A).
Contrary to Defendants' assertion, Fed.R.Civ.P. 26(a)(2)
clearly contemplates a general category of persons who will give
expert testimony, Fed.R.Civ.P. 26(a)(2)(A), and a subcategory
of persons who are specifically retained to give expert
testimony, Fed.R.Civ.P. 26(a)(2)(B). See Bank of China, New
York Branch v. NBM, LLC, 359 F.3d 171, 182 n. 13 (2d Cir. 2004).
Rule 26(a)(2)(A) requires the disclosure of the identity of "any
person who may be used at trial to present evidence under
Rules 702, 703, or 705 of the Federal Rules of Evidence." Thus, the
identity of any witness who may be used to provide expert
testimony, whether specifically retained for that purpose or not, must be
disclosed.*fn1 Rule 26(a)(2)(B) requires the disclosure of a
written report by "a witness who is retained or specially
employed to provide expert testimony in the case." Persons who
are not retained for the purpose of providing expert testimony,
such as treating physicians, need not prepare a written report.
See Advisory Committee Notes to 1993 amendments ("A treating
physician, for example, can be deposed or called to testify at
trial without any requirement for a written report."); Bank of
China, 359 F.3d at 182 n. 13; see also Peck v. Hudson City
School Dist., 100 F. Supp.2d 118, 121 (N.D.N.Y. 2000) (Kahn, J.)
("[W]hen the doctor's opinion testimony extends beyond the facts
disclosed during care and treatment of the patient and the doctor
is specifically retained to develop opinion testimony, he or she
is subject to the provisions of Rule 26(a)(2)(B)."). Whether a
report must be prepared is not the sine qua non of whether a
witness is an expert. Id. Rather, it is the substance of the
testimony that controls whether it is considered expert or lay
testimony. See generally Bank of China, 359 F.3d at 182;
Fed.R.Evid. 701, advisory committee notes to 2000 amendments
("The amendment does not distinguish between expert and lay
witnesses, but rather expert and lay testimony. Certainly it
is possible for the same witness to provide lay and expert
testimony in a single case. . . . The amendment makes clear that
any part of a witnesses' testimony that is based upon scientific,
technical, or other specialized knowledge within the scope of
Rule 702 is governed by the standards of Rule 702 and the
corresponding disclosure requirements of the Civil and Criminal
Rules"). Rule 26(b)(4)(C) governs the payment of a reasonable fee to
experts. That Rule does not distinguish between those persons who
generally may give expert testimony and those who have been
specifically retained to provide expert testimony. Thus, under
that Rule, any person giving testimony within the purview of
Rule 702 is entitled to a reasonable fee. However, there can be no
blanket rule that certain persons, such as physicians, giving
testimony are automatically entitled to a reasonable fee merely
because of their title, knowledge, or a degree they may possess.
Again, the critical factor in determining whether a witness is
entitled to a reasonable fee is the substance of the testimony.
Thus, for example, a physician testifying to whether a clamp was
left in a patient during surgery or whether the assailant in a
battery case was wearing a blue shirt, would not be expert
testimony and the physician would not be entitled to a reasonable
fee. If the treating physician's testimony is limited to pure
observation, an explanation of treatment notes, etc., then the
physician may properly be characterized as a fact witness and
receive nothing more than the statutory witness fee. If, however,
testimony is elicited that reasonably may be considered to be
opinions based on specialized skill and knowledge that fall
within Fed.R.Evid. 702, then the physician may properly be
characterized as an expert witness and is entitled to a
reasonable fee for time spent in responding to discovery.
Upon review of the deposition transcript submitted with this
appeal, there are questions asked by Defendants that could
reasonably be interpreted as calling for opinion testimony.
Further, such opinion testimony would require specialized
knowledge, skill, experience, training and/or education. Only a
physician would be able to render such opinion. As such, parts of
the deposition testimony can fairly be characterized as falling within the purview of Fed.R.Evid. 702. Accordingly, Defendants
are obligated to pay a reasonable fee for Panzetta's time spent
responding to discovery.
For the foregoing reasons, the June 29, 2004 Memorandum
Decision & Order of Magistrate ...