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United States District Court, N.D. New York

July 14, 2004.


The opinion of the court was delivered by: THOMAS McAVOY, District Judge



  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 Judge Treece is AFFIRMED.


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