Vreeland v. Fisher et al

Filing 253

ORDER; Plaintiffs Motion for Leave to Conduct Oral Deposition of Defendants Retained Expert Witness, Susan M. Tiona, M.D., on 7/20/2015 at the Colorado Territorial Correctional Facility" 233 is GRANTED in part, by Magistrate Judge Kathleen M. Tafoya on 7/30/15.(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].) Pursuant to this court’s Order (Doc. No. 251),
Defendant filed a supplemental response on July 30, 2015. (Doc. No. 252 [Supp. Resp.].)
Plaintiff seeks leave to depose Defendant’s retained medical expert, Susan Tiona, M.D.
(See Mot.) Plaintiff requested to depose Dr. Tiona on July 20, 2015, at the Colorado Territorial
Correctional Facility. (Id.) Defendant does not oppose the motion; however, he does request
that the deposition be scheduled at a mutually agreeable date and time after Plaintiff has complied

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with the CDOC Administrative Regulations, and that Plaintiff be required to pay Dr. Tiona $150
per hour for her time traveling and being deposed. (See Resp.)
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.
Plaintiff objects only to paying Dr. Tiona $150 per hour because 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.”
(Reply at 3.) 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

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conflict of interest. (See Doc. Nos. 152, 159, 161.) In his Supplemental Response, Defendant
Fisher advises the court that Dr. Tiona is not being paid by the defendant over and above her salary
as the Chief Medical Officer for the Colorado Department of Corrections for her work in this case.
(Supp. Resp., ¶ 2.) Nevertheless, Defendant Fisher argues that Plaintiff should be required to pay
Dr. Tiona $150 per hour because she “will have to take ‘paid administrative leave’ to prepare for
(for which Defendant will be responsible), travel to (for which Plaintiff should be responsible),
and participate in (for which Plaintiff should be responsible) the deposition requested by Plaintiff
— meaning that she will be paid, but that she will lose time off for this deposition.” (Id., ¶ 3.)
The court is aware, however, that paid administrative leave is different from annual or sick leave,
and that Dr. Tiona will not have a personal disadvantage by taking such leave. Because Dr. Tiona
is being paid by the Colorado Department of Corrections for her time traveling to and taking her
deposition, the court sees no reason Plaintiff should be required to reimburse her for her time as
well.
However, Plaintiff is not excused from the requirements of the Rule 30 of the Federal
Rules of Procedure, including the notice requirements, or the Administrative Regulations of the
Colorado Department of Corrections.1, 2
Accordingly, for the foregoing reasons, it is
ORDERED that 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
1 The in forma pauperis statute, 28 U.S.C. § 1915, does not require the court to order waiver of

fees for recording the deposition.
2 This court previously has advised Plaintiff that it will not interfere in the day-to-day activities of
prison administration. (See Doc. No. 210.)
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Correctional Facility” is GRANTED in part. Plaintiff may depose Dr. Tiona at a mutually
agreeable date and time after Plaintiff has complied with the Colorado Department of Corrections
Administrative Regulations, specifically Administrative Regulation 750-03. Plaintiff also must
comply with Fed. R. Civ. P. 30 and D.C.COLO.LCivR 30.1. Plaintiff is not required to pay Dr.
Tiona for her travel time or for her deposition time. The deposition, if taken, must be held on or
before the discovery cutoff date, August 26, 2015.
Dated this 30th July, 2015.

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