United States District Court, M.D. Pennsylvania
C. CARLSON, UNITED STATES MAGISTRATE JUDGE
case involves allegations of battery, negligence and
negligent hiring and supervision in connection with an
episode of alleged sexual abuse which occurred when the
then-minor plaintiff, R.D., was participating in a camping
excursion conducted by the defendant. In the course of this
excursion it is alleged that another camper, identified as
N.S., sexually assaulted the plaintiff, and may have had
inappropriate sexual contact with two other minors who shared
a tent with the plaintiff and N.S. during this excursion.
These two other minors are identified in these proceedings as
G.M. and E.J.
March 7, 2017, this matter was referred to the undersigned
for pretrial management and resolution of discovery disputes.
Since that time we have addressed, and are in the process of
addressing, numerous discovery disputes between these
these pending discovery issues relates to the proper rate of
reimbursement for a subpoenaed deponent-witness, Dr. Adam
Cohn. Dr. Cohen is a psychiatrist who has been treating the
plaintiff, R.D. R.D. identified Dr. Cohen as a fact witness
in this case, and the defense has subpoenaed Dr. Cohen to
testify as a fact witness in a discovery deposition. While
the doctor is prepared to comply with the subpoena counsel
for the doctor and the defendant have presented us with a
dispute regarding the proper rate of reimbursement for this
the defendant's position that, as a fact witness, Dr.
Cohen's witness fee is set by statute at $40.00 per day.
See 28 U.S.C. §1821(b). In contrast, the
doctor's counsel, citing the inconvenience and expense of
the deposition for the doctor; the doctor's training,
experience and expertise; and perhaps anticipating that the
nature of the defendant's inquiry will encroach into
matters of medical opinion, argues that the doctor should be
reimbursed at a rate of $450 per hour for what will
essentially be expert testimony. Each party has submitted a
letter brief supporting their respective view on this issue.
(Docs. 94 and 95.) Accordingly, this matter is ripe for
reasons set forth below, IT IS ORDERED that the doctor is
entitled to the standard fact witness fee of $40 per day for
participating in this deposition as fact witness. IT IS
FURTHER ORDERED, however, that upon completion of the
deposition, if it can be shown that the questioning of the
doctor treated him as an expert witness, rather than a fact
witness, upon a proper application the court will consider
directing further reimbursement for participating in this
discovery question presented here regarding the proper rate
of reimbursement for a treating physician deponent-witness
does not admit of a single, simple, easy answer. Quite the
contrary, this legal question is defined by two sharply
divergent lines of authority. Drawing upon the statute which
governs witness fees for fact witnesses generally, 28 U.S.C.
§1821, many cases adopt the view that a treating
physician who is identified and subpoenaed as a fact witness
is simply entitled to the fact witness fee, $40 per day.
See e.g., Irons v. Karceski, 74 F.3d 1262, 1262
(D.C. Cir. 1995);Jorden v. Steven J. Glass, MD, No.
CIV 09-1715 (JHR/JS), 2010 WL 3023347, at *2 (D.N.J. July 23,
2010); McDermott v. FedEx Ground Sys., Inc., 247
F.R.D. 58, 58 (D. Mass. 2007); DeRienzo v. Metro. Transit
Auth. & Metro-N. Rail Rd., No. 01 CIV. 8138(CBM),
2004 WL 67479 (S.D.N.Y. Jan. 15, 2004); Demar v. United
States, 199 F.R.D. 617, 618 (N.D. Ill. 2001); Fisher
v. Ford Motor Co., 178 F.R.D. 195, 197 (N.D. Ohio 1998);
Baker v. Taco Bell Corp., 163 F.R.D. 348 (D. Colo.
1995). In reaching this conclusion, courts have acknowledged
that: “Section 1821, as the Supreme Court has made
clear, Hurtado v. United States, 410 U.S. 578, 587
n. 7, 93 S.Ct. 1157, 1163 n. 7, 35 L.Ed.2d 508 (1973), is not
designed to compensate witnesses fully for their lost time
and income, ” some of the measures of loss cited by Dr.
Cohen's counsel. Fisher v. Ford Motor Co., 178
F.R.D. 195, 197 (N.D. Ohio 1998). These courts further
observe that all fact witnesses have an equal obligation to
provide testimony and that no fact witness should receive a
different and greater witness fee for providing what is
essentially fact testimony.
contrast, other courts have held that treating physicians, in
certain circumstances, should be treated as expert witnesses
entitled to fees over and above those provided for by 28
U.S.C. §1821. See e.g., Lamere v. N.Y.
State Office For The Aging, 223 F.R.D. 85, 93 (N.D.N.Y.
2004), aff'd, No. 03-CV-0356, 2004 WL 1592669
(N.D.N.Y. July 14, 2004) Coleman v. Dydula, 190
F.R.D. 320, 323 (W.D.N.Y. 1999) citing Scheinholtz v.
Bridgestone/Firestone, Inc., 187 F.R.D. 221, 222
(E.D.Pa.1999) (“reluctantly” approving
agreed-upon fee of $600 per hour for treating physician's
deposition); Magee v. Paul Revere Life Ins. Co., 172
F.R.D. 627, 645-46 (E.D.N.Y.1997) (finding $250 per hour to
be reasonable fee for treating psychiatrist's
deposition); Slywka v. CMI-Equipment & Engineering,
Inc., 1997 WL 129378 at *1 (M.D.Pa. March 14, 1997)
(finding deposition rate of $300 per hour for treating
physician designated as both fact witness and expert witness
“generous, and ample to satisfy Rule 26(b)(4)[(E)]'
s ‘reasonable fee' requirement”); Hose v.
Chicago and North Western Transp. Co., 154 F.R.D. 222,
225-27 (S.D.Iowa 1994) (finding $400 per hour to be
reasonable fee for treating neurologist's deposition).
These cases focus upon the unique expertise of treating
doctors, and often characterize their testimony as being akin
to that of an expert witness, thus justifying Rule
26(b)(4)(E)' s “reasonable fee” requirement
for expert witness deposition testimony.
factors combine to foster this divergence of opinions. At the
outset, “[t]he law is not well developed as to what may
and how to define a treating physician, and, for the most
part, the distinction between a treating physician being
viewed as either an expert or a fact witness is rather
opaque.” Lamere v. N.Y. State Office For The
Aging, 223 F.R.D. 85, 87 (N.D.N.Y. 2004),
aff'd, No. 03-CV-0356, 2004 WL 1592669 (N.D.N.Y.
July 14, 2004). Further complicating this analysis is the
fact that: “whether a treating physician should be
compensated at a ‘fact' witness rate of $40 per day
or a ‘reasonable” rate [as an expert] depends on
the substance of such physician's testimony.”
Wirtz v. Kansas Farm Bureau Servs., Inc., 355
F.Supp.2d 1190, 1211 (D. Kan. 2005). Thus, this question is
often not amenable to a definitive answer in advance of the
witness' actual testimony. Moreover, once the physician
has testified, while the benchmarks for characterizing that
testimony as either expert or fact witness testimony remain
“rather opaque, ” Lamere v. N.Y. State Office
For The Aging, supra, 223 F.R.D. at 87, we find
the following guidance persuasive as a benchmark for
determining whether the physician testimony advances beyond
mere factual recitals into the realm of expert opinion:
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 an opinion based on specialized skill and
knowledge that fall within Fed.R.Evid. 702, then the