Vreeland v. Fisher et al

Filing 251

ORDER re: Plaintiff's 233 MOTION for Leave to Conduct Oral Deposition of Defendant's Retained Expert Witness, Susan M. Tiona, M.D., on 7/20/2015 at the Colorado Territorial Correctional Facility. It is ORDERED that, no later than July 30, 2015, Defendant Fisher shall file a supplemental response in which he advises the court of the following as set forth in the attached order, by Magistrate Judge Kathleen M. Tafoya on 7/27/15. (morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 13BcvB02422BPABBKMT

DELMART E.J.M VREELAND, II,
Plaintiff,
v.
THOMAS C. FISHER, MD,
Defendant.

ORDER

This matter is before the court on Plaintiff’s “Motion for Leave to Conduct Oral Deposition
of Defendant’s Retained Expert Witness, Susan M. Tiona, M.D., on 7/20/2015 at the Colorado
Territorial Correctional Facility” (Doc. No. 233 [Mot.], filed July 8, 2015). Defendant filed his
response on July 23, 2015 (Doc. No. 249 [Resp.].) Plaintiff filed his reply before the response, on
July 20, 2015. (Doc. No. 243 [Reply].)
Plaintiff seeks leave to depose Defendant’s retained medical expert, Susan Tiona, M.D.
(See Mot.) Defendant does not oppose the motion to depose Dr. Tiona; however, he does request
that Plaintiff be required to pay Dr. Tiona the sum of $450.00 ($150.00 per hour for one hour of
deposition time and two hours of travel time between Colorado Springs and the Colorado
Territorial Correctional Facility). (See Resp.) Plaintiff objects to paying Dr. Tiona $150 per

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hour. (Reply at 3.) Plaintiff argues that Defendant Fisher testified in his deposition that “he did
not pay the expert anything, and did not know if anyone paid her any money, and if anyone did pay
her, he did not know who, and/or what the compensation was.” (Id.)
Rule 26(b)(4)(A) of the Federal Rules of Civil Procedure provides that “[a] party may
depose any person who has been identified as an expert whose opinions may be presented at trial.”
Further, Rule 26(b)(4)(E)(i) states that “[u]nless manifest injustice would result, the court must
require that the party seeking discovery pay the expert a reasonable fee for time spent in
responding to discovery.” See Fed. R. Civ. P. 26(b)(4)(E)(i) In determining a reasonable fee for
an expert under Rule 24(b)(4)(E), several factors may be relevant:
1) the witness’ area of expertise; (2) the education and training required to provide
the expert insight that is sought; (3) the prevailing rates of other comparably
respected available experts; (4) the nature, quality and complexity of the discovery
responses provided; (5) the fee actually being charged to the party who retained the
expert; (6) fees traditionally charged by the expert on related matters; and (6) any
other factor likely to be of assistance to the court in balancing the interests
implicated by Rule 26.
U.S. Energy Corp. v. NUKEM, Inc., 163 F.R.D. 344, 345–46 (D. Colo. 1995). The court has
discretion to set reasonable expert fees under Rule 26.
Defendant Fisher was, at the time of the allegations in the Complaint, an employee of the
Colorado Department of Corrections, and was, until January 6, 2015, represented by the Colorado
Attorney General, at which time the Colorado Attorney General withdrew due to a conflict of
interest. (See Doc. Nos. 152, 159, 161.) The court assumes that, if the Colorado Attorney
General had continued to represent Defendant Fisher, he would not have been required to
compensate Dr. Tiona, who also is an employee of the Colorado Department of Corrections.

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Defendant has not addressed whether Dr. Tiona has been compensated or will be compensated by
Defendant Fisher for her services as a retained expert under Rule 26(a) or, if so, at what rate.
In light of the circumstances of this case, and because two of the factors the court
may consider in determining a reasonable fee for an expert are the fee actually being
charged to the party who retained the expert and fees traditionally charged by the expert on
related matters, U.S. Energy Corp., 163 F.R.D. 345–46, it is
ORDERED that, no later than July 30, 2015, Defendant Fisher shall file a
supplemental response in which he advises the court of the following:
1. If he or the Colorado Department of Corrections have compensated or will
compensate Dr. Tiona as a retained expert outside her salary as an employee for
the Colorado Department of Corrections, and, if so, at what hourly rate;
2. If Defendant Fisher has compensated or will compensate Dr. Tiona outside of
her salary, whether Dr. Tiona, for the time she travels to and from her
deposition and during her deposition, intends to take earned leave from her
duties as Chief Medical Officer for the Colorado Department of Corrections or
whether she will be paid by the Colorado Department of Corrections in addition
to being compensated by Plaintiff; and

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3. If she has acted as a retained expert on other matters, the fees she traditionally
charges for her services.
Dated this 27th day of July, 2015.

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