McArthur v. Source Gas LLC

Filing 90

MINUTE ORDER denying 67 Plaintiff's Motion to Compel Defendant's Payment of Fees to Non-Retained Expert for Time at Deposition, as set forth in this order, by Magistrate Judge Michael J. Watanabe on 8/23/2011.(mjwcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No.

10-cv-02327-REB-MJW

CAMERON McARTHUR,
Plaintiff,
v.
SOURCE GAS, LLC,
Defendant.
MINUTE ORDER
Entered by Magistrate Judge Michael J. Watanabe
It is hereby ORDERED that Plaintiff’s Motion to Compel Defendant’s Payment of
Fees to Non-Retained Expert for Time at Deposition (docket no. 67) is DENIED for the
following reasons. Each party shall pay their own attorney fees and costs for this
motion.
In this case, Plaintiff designated Susan Kamler, MA, LPC, as a non-retained
expert pursuant to Fed. R. Civ. P. 26(a)(2)(C). See Plaintiff’s Amended Designation of
Expert Witness (docket no. 64). Prior to Ms. Kamler’s deposition, Defendant paid Ms.
Kamler a witness and mileage fee in the amount of $49.28 pursuant to 28 U.S.C. §
1821. See copy of check issued to Ms. Kamler which is attached as Exhibit 3 to
Plaintiff’s Motion, page 9 (docket no. 67-3). Courts have held that non-retained experts,
i.e., treating physicians, are akin to ordinary witnesses for purposes of payment of
witness fees for testimony. See Baker v. Taco Bell Corp., 163 F.R.D. 348, 350-51 (D.
Colo. 1995) (two doctors testifying to their own personal examinations and treatment of
the plaintiff were only entitled to a $40 witness fee plus mileage pursuant to 28 U.S.C. §
1821). Ms. Kamler is a non-retained expert who was designated by Plaintiff to testify
regarding her examination and treatment of Plaintiff just like the doctors in the Baker
case, supra. Accordingly, the Baker case is dispositive on the subject motion (docket
no. 67) and therefore the subject motion (docket no. 67) should be denied.
Date: August 23, 2011