United States District Court, N.D. Mississippi, Aberdeen Division
GEORGE H. DUKE, Plaintiff,
PERFORMANCE FOOD GROUP, INC., Defendant.
DAVID A. SANDERS, Magistrate Judge.
This matter is before the court on motion of the plaintiff to determine appropriate fees for his physician witnesses (# 104). After considering the matter, the court finds as follows:
THE PARTIES' CONTENTIONS
In the present case, the court is asked to determine whether it will consider treating physicians as experts entitled to reasonable compensation for their time, or as ordinary fact witnesses, limited to the statutory witness fee of forty dollars per day. The plaintiff contends he should be required to pay his treating physician witnesses the daily witness fee of forty dollars per day prescribed by 28 U.S.C. § 1821. He also challenges the fees requested by his doctors as unreasonable. The plaintiff's two treating physicians, Drs. James S. Woodard and John E. Stanback, who testified at trial pursuant to subpoena, both contend they are expert witnesses and entitled to reasonable compensation, consistent with their professional standing. Dr. Woodard, a board-certified internist, demanded and received a fee of $2, 400.00 plus mileage. Dr. Stanback, a family practice doctor, initially requested a fee of $5, 000.00 plus mileage, but invoiced $4, 000.00, plus his mileage. Both doctors contend they had to set aside an entire day from their practices because of the trial subpoenas. Thus Dr. Woodard claims $300.00 dollars per hour, while Dr. Stanback is claiming $500.00 per hour.
The court, having considered the arguments of the parties and the conflicting authority from other jurisdictions, finds that treating physicians testifying about the treatment of their patients will typically be expert witnesses. In testifying about the diagnosis, treatment, and prognosis of their patients and the impact of injuries or illness on an individual's present and future abilities and limitations, physicians are providing expert witness testimony. Fed.R.Evid. 702. They are, therefore, entitled to reasonable compensation for their time in depositions or at trial pursuant to Rules 26(b)(4)(E) of the Federal Rules of Civil Procedure and Rule 45(d)(3)(A)(iv) and (d)(3)(C)(ii).
The plaintiff argues that he did not select or retain either of these physicians to provide expert testimony at trial, and only designated these physicians as experts because Local Rule 26(a)(2)(D) required him to do so. That rule mandates that a party "designate physicians and other witnesses who are not retained or specially employed to provide expert testimony but are expected to be called to offer expert opinions at trial." He argues that notwithstanding the designation, he never qualified the physicians as experts; never tendered them as experts; and never sought expert opinion testimony from them. Therefore, plaintiff does not believe that he owes them any amount over the statutory fee. He also voices concerns about whether he can be required to pay these non-retained experts any fee they demand.
Finding no cases directly on point in Mississippi, the plaintiff cites Robbins v. Ryan's Steak House East, Inc., 223 F.R.D. 448 (S.D.Miss. 2004) and Sims v. City of Aberdeen, 2011 WL 132362 (N.D. Miss. Jan. 14, 2011). In Robbins the court held that treating physicians are expert witnesses, who must be timely and properly designated as such. It did not address the issue of compensation for these witnesses.
In what at first glance appears to be a contrary decision, the court in Sims had to decide whether, and to what extent, it would allow a treating physician to testify, where the physician had not been designated as an expert but his treatment records were provided in discovery. There the court allowed the physician to testify about matters set forth in the medical records and noted that an amendment to the local rules impacted the decision. While the local rule at one time unconditionally mandated the designation of treating physicians as experts, the amended rule required expert designations only when non-retained physicians "are expected to be called to offer expert opinions at trial." Sims, 2011 WL 132362 at *5, citing L.U.Civ.R. 26(a)(2)(D). The court held that the treating physician could testify to facts and opinions related to his treatment of the plaintiff, and explained:
In rare instances a treating physician may be called to testify as to basic facts known to him as the treating physician without expressing any opinion at all. It can be argued that such a witness is simply a fact witness who happens to be a physician and that the calling party should not be required to comply with the rules regarding expert witness disclosures. This situation is one that is a departure from the ordinary situation contemplated by the rules and is left to the discretion of the trial judge.
However, as the plaintiff concedes, this case is not directly on point. The physician was prohibited because of the discovery violation from offering expert testimony, and restricted to the scope of the disclosed records. The court was not considering what testimony was "factual" versus "expert" at that point in the case. That distinction would be made at the trial.
Woodard and Stanback both cite to the Professional Guide for Attorneys & Physicians. This guide was jointly drafted and issued by the Mississippi State Bar and the Mississippi State Medical Association. It seeks to educate and guide physicians about what is expected and useful in medical reports requested by attorneys. It explains the difference between treating and attending physicians to educate the legal community. It is clearly an attempt by the governing bodies of the two professions to provide a framework and protocols to help members of the profession work cooperatively together. No doubt, to the extent that both professions abide by these guidelines, misunderstandings and tensions between these professios can be reduced. This joint policy both declares that: "The physician has the obligation to cooperate with this patient's attorney" and that, "[t]he physician is entitled to charge fair and reasonable compensation for depositions and court appearances. It is the intention of both professions that a testifying physician shall not suffer a financial loss because of his appearance at deposition or in court." While persuasive, these guidelines, by their terms, are not given the force of law.
CONFLICTING LEGAL AUTHORITY
The federal courts have split on the question of whether treating physicians should be treated as expert witnesses, and when they agree on the outcome, they ...