Springs v. Hobbs

Filing 89

ORDER denying 84 Motion to Quash Subpoenas or, Alternatively, Motion for a Protective Order. Signed by Judge J. Leon Holmes on 1/12/2018. (thd)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
THIS IS A CAPITAL CASE
THOMAS LEO SPRINGS
v.

PETITIONER
NO. 5:13CV00005 JLH

WENDY KELLEY, Director,
Arkansas Department of Correction

RESPONDENT
ORDER

The Court previously entered an Order granting Thomas Leo Springs’s unopposed request
to depose Drs. Raymond Molden and Albert Kittrell (“ADC psychiatrists”). Document #55.
Because Springs is indigent, the Court also authorized the United States Marshals Service to pay
the actual mileage and witness fee related to these depositions. Document #82. The ADC
psychiatrists have filed a motion to quash the subpoenas, or, alternatively, for a protective order,
arguing that they should be paid a professional fee for their time preparing for and testifying at
their deposition.
The parties’ joint report identified the ADC psychiatrists as treating physicians who
conducted non-forensic psychiatric evaluations of Springs at the ADC. Document #43 at 28. Dr.
Kittrell is the regional psychiatric director of Correct Care Solutions, LLC (“CCS”), a contract
medical care provider for the ADC, while Dr. Molden is a private psychiatrist hired by CCS to
provide psychiatric care and treatment to ADC inmates.
The issue is whether the ADC psychiatrists should be compensated for their time as expert
witnesses under Federal Rule of Civil Procedure 26(b)(4)(E) rather than being paid only the
statutory fee of $40 per day as provided in 18 U.S.C. § 1821(b). The ADC psychiatrists argue that
they are entitled to an expert witness fee because a treating physician’s deposition will necessarily

include expert testimony under Federal Rule of Evidence 702.1 Springs says he is not required to
pay the expert witness fee because he is only exploring facts related to his mental illness by
deposing witnesses who have previously treated him. He also argues that Rule 26 is inapplicable
because neither party has disclosed the ADC psychiatrists as experts. Finally, he says the ADC
psychiatrists’ appearance will not create an undue burden or expense for them because they are
employed by a private company that regularly provides psychiatric care and treatment to ADC
inmates.
Rule 26 requires disclosure of two types of witnesses: (1) witnesses who may be called to
present expert testimony under Federal Rules of Evidence 702, 703, or 705, and (2) witnesses
retained or specifically employed to provide expert testimony. Fed. R. Civ. P. 26(a)(2)(A)(B).
The Rule permits a party to depose “any person who has been identified as an expert whose
opinions may be presented at trial.” Fed. R. Civ. P. 26(b)(4)(A). A party seeking discovery under
Rule 26(b)(4)(A) must “pay the expert a reasonable fee for time spent” unless “manifest injustice
would result.” Fed. R. Civ. P. 26(b)(4)(E).
The ADC psychiatrists primarily rely on Hoover v. United States, No.01C2372, 2002 WL
1949734 (N.D. Ill. Aug. 22, 2002), which held that “the treating physician[] is a person who ‘may
present evidence under Rules 702, 703, or 705 of the Federal Rules of Evidence’” because of
“special insights by virtue of his or her training that will inform the factual testimony he or she

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  A witness who is qualified as an expert by knowledge, skill, experience, training, or education

may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact
to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
Fed. R. Evid. 702.
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will offer at trial.” Hoover, 2002 WL 1949734, at *8 (quoting Fed. R. Civ. P. 26(a)(2)(A)). The
court said “that if a party intends to offer such evidence at trial through the treating physician’s
testimony, then Rule 26 treats the physician as a non-retained occurrence witness expert, so long
as he or she is identified and disclosed pursuant to Rule 26(a)(2)(A).” Id. Springs responds that
Hoover is distinguishable because the ADC psychiatrists have not been disclosed as experts under
Rule 26. Two other cases cited by the ADC psychiatrists can similarly be distinguished. See
Patterson v. Avis Rent A Car Systems, Inc., 48 F. Supp. 3d 532, 533-34 (S.D.N.Y. 2014) (“There
are diverging cases as to whether a treating physician not designated as an expert witness under
Rule 26(a)(2) is entitled to be compensated under the statutory rate or the ‘reasonable fee’ rate.
Here, however, this question is not presented because the plaintiff has offered his treating
physician as an expert witness.”) (citations omitted); Bandy v. Kimsey, No. 2:09CV82, 2010 WL
4630828, at *1 (N.D. Ind. Nov. 4, 2010) (“Bandy disclosed both physicians as experts under
Federal Rule of Civil Procedure 26(a)).”). Springs also cites a line of cases holding that under
Rule 26(b)(4)(E) a treating physician who has not been designated as an expert is entitled to no
more than the statutory fee. See Rodriguez ex rel. Fogel v. City of Chicago, No. 08C4710, 2009
WL 2413750 (N.D. Ill. Aug. 5, 2009); Fisher v. Ford Motor Co., 178 F.R.D. 195 (N.D. Ohio
1998); Mangla v. Univ. of Rochester, 168 F.R.D. 137 (W.D.N.Y. 1996); Baker v. Taco Bell Corp.,
163 F.R.D. 348 (D. Colo. 1995); Salas v. United States, 165 F.R.D. 31 (W.D.N.Y. 1995).
Here, the ADC psychiatrists are treating physicians who have examined and treated Springs
in the past. Like other witnesses with historical knowledge relevant to issues in a case, they may
be deposed about the observations and conclusions that they reached in the past. Witnesses with
such historical knowledge are paid the statutory fee of $40 per day when they testify; they are not
otherwise compensated for their time. Physicians are not entitled to special treatment. McDermott

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v. FedEx Ground Systems, Inc., 247 F.R.D. 58, 61 (D. Mass. 2007). The ADC psychiatrists have
already been compensated for making the observations they have made and reaching the
conclusions they have reached relevant to this case: they were paid by the company that employs
them to provide treatment to ADC inmates. Furthermore, Springs is indigent and has no means to
pay them. Manifest injustice would result if he were required to compensate them as they request.
The Motion to Quash Subpoenas or, Alternatively, Motion for a Protective Order is
DENIED. Document #84.
IT IS SO ORDERED this 12th day of January, 2018.

__________________________________
J. LEON HOLMES
UNITED STATES DISTRICT JUDGE 

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