Phillips v. Tangilag et al

Filing 232

MEMORANDUM OPINION & ORDER Signed by Senior Judge Thomas B. Russell on 10/22/2020. denying 201 Motion to Vacate. See order for specifics. cc: Counsel(KJA)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT PADUCAH
CIVIL ACTION NO. 5:16-CV-00088-TBR
DONALD R. PHILLIPS,

PLAINTFF

v.
SHASTINE TANGILAG, MD, et al.,

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This matter comes before the Court upon Plaintiff Donald Phillips’ (“Phillips”) Objection
to and Motion to Vacate Magistrate Judge’s Ruling. [DN 201]. Defendant Jefferson (“Jefferson”)
has also filed a Cross-Objection to Magistrate Judge’s Order. [DN 204]. As such, this matter is
ripe for adjudication. For the reasons that follow, IT IS HEREBY ORDERED that Phillips’
Objection to and Motion to Vacate Magistrate Judge’s Ruling [DN 201] is DENIED. Jefferson’s
Cross-Objection to Magistrate Judge’s Order [DN 204] is OVERRULED.
I. Background
Jefferson disclosed Dr. Zack Stearns as an expert witness on April 13, 2020. [DN 146]. On
May 28, 2020, counsel for Phillips deposed Dr. Stearns. During the deposition, Phillips argues Dr.
Stearns was unprepared for the deposition which caused the deposition to last longer. The
deposition lasted one hour and thirty-three minutes. Dr. Stearns charges $800 for the first hour of
his services and then $250 for every fifteen minutes thereafter. Following the deposition, Phillips
was charged for two hours of Dr. Stearns’ time, amounting to $1,800. Counsel for Phillips sent Dr.
Stearns a check for $1,300 and refused to pay anything more.
Counsel for Jefferson contacted Magistrate Judge King regarding the dispute over
payment. On July 21, 2020, Magistrate Judge King conducted a telephonic status conference to

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address this issue. [DN 192]. Phillips made an oral motion asking the Court to find that he was not
required to pay the remaining $500 on the invoice. Magistrate Judge King denied Phillips’ motion
because he found:
“even if Dr. Stearns was unprepared for his deposition, as Plaintiff alleges, there
would be no manifest injustice in requiring Plaintiff to pay Dr. Stearns’ fees. At the
status conference, Plaintiff’s counsel stated his belief that he secured favorable
admissions from Dr. Stearns at the deposition because Dr. Stearns was unprepared.
Plaintiff should not be able to gain the benefit of a purportedly unprepared expert
witness while also seeking to deprive that expert witness of payment for his time.
Accordingly, there is no manifest injustice that would occur should Plaintiff be
required to pay Dr. Stearns’ fees. Further, when considering the necessary time Dr.
Stearns was required to spend immediately before and after the deposition, the fees
for a two-hour period are reasonable.”
[DN 200 at 2-3]. Now Phillips objects to Magistrate Judge King’s order to pay the
remaining $500. Jefferson also objects to the order and requests this Court order Phillips
to pay an outstanding balance of $1,266.67.
II. Legal Standard
This matter was referred to Magistrate Judge King pursuant to 28 U.S.C. § 636, which
Congress enacted to relieve the burden of the federal courts by permitting assignment of certain
duties to magistrate judges. Gomez v. United States, 490.U.S. 858, 869–70 (1989) (reviewing the
legislative history of § 636). Section 636(b) identifies the powers that may be assigned to
magistrates by the district court. It also sets forth the applicable standard of review for objections
to the ruling of a magistrate on such assigned matters. See 28 U.S.C. § 636(b) (“A judge of the
court may reconsider any pretrial matter under subparagraph (A) [relating to nondispositive orders]
where it has been shown that the magistrate's order is clearly erroneous or contrary to law.”). In
United States v. Curtis, the Sixth Circuit explained:
Thus, § 636 creates two different standards of review for district courts when a
magistrate court's finding is challenged in district court. A district court shall apply
a “clearly erroneous or contrary to law” standard of review for the “nondispositive,
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preliminary measures of § 636(b)(1)(A).” United States v. Raddataz, 447 U.S. 447,
673 (1980). Conversely, “dispositive motions” accepted from § 636(b)(1)(A), such
as motions for summary judgment or for the suppression of evidence, are governed
by the de novo standard. Id. at 674.
237 F.3d 598, 603 (6th Cir.2001). Rule 72 of the Federal Rules of Civil Procedure “has
implemented this statutory provision.” Callier v. Gray, 167 F.3d 977, 980 (6th Cir.1999). The
relevant portion of Rule 72 provides in subsection (a) that this Court shall consider objections to a
magistrate judge's order on a nondispositive matter and “shall modify or set aside any portion of
the magistrate judge's order found to be clearly erroneous or contrary to law.” Fed.R.Civ.P. 72(a).
Our circuit holds this standard of review to be a limited one. See Massey v. City of Ferndale,
7 F.3d 506, 509 (6th Cir.1993) (“When a magistrate judge determines a non-excepted, pending
pretrial matter, the district court has the authority to ‘reconsider’ the determination, but under a
limited standard of review.”) (citing 28 U.S.C. § 636(b)(1)(A)); see generally Charles Alan
Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice & Procedure, § 3068 (West 2007)
(explaining that Rule 72 implements the legislative mandate of Section 636(b)(1), the provision in
the 1976 amendments that clarified and expanded the authority delegable to a magistrate judge in
pretrial matters).
Several decisions from courts of this circuit discuss the “clearly erroneous” and the
“contrary to law” standard found in § 636(b)(1)(A) and Rule 72(a). In Tri–Star Airlines, Inc. v.
Willis Careen Corp. of L.A., our sister district court for the Western District of Tennessee
explained:
A judicial finding is deemed to be clearly erroneous when it leaves the reviewing
court with “a definite and firm conviction that a mistake has been committed.”
Heights Comm. Congress v. Hilltop Realty, Inc., 774 F.2d 135, 140 (6th Cir.1985).
Under the clearly erroneous standard, a court reviewing a magistrate judge's order
should not ask whether the finding is the best or the only conclusion that can be
drawn from the evidence. Further, this standard does not permit the reviewing court
to substitute its own conclusion for that of the magistrate judge. Rather, the clearly
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erroneous standard only requires the reviewing court to determine if there is any
evidence to support the magistrate judge's finding and that the finding was
reasonable. Id.
75 F.Supp.2d 835, 839 (W.D.Tenn.1999); see also In re Search Warrants Issued Aug. 29, 1994,
889 F.Supp. 296, 298 (S.D.Ohio 1995) (“Review under Rule 72(a) provides ‘considerable
deference to the determination of the magistrates.’ A finding is clearly erroneous only when the
reviewing court is left with a definite and firm conviction that a mistake has been committed.”
(citations omitted)).
III. Discussion
Fed. R. Civ. P. 26(b)(4)(E) states, “[u]nless manifest injustice would result, the court must
require that the party seeking discovery: (i) pay the expert a reasonable fee for time spent in
responding to discovery under Rule 26(b)(4)(A) or (D)…” (emphasis added). “Our circuit has little
caselaw on Rule 26(b)(4)(E) or its predecessor (Rule 26(b)(4)(C)), and we have none at all
regarding a district court's implicit denial of such a motion.” Brown v. Tax Ease Lien Servicing,
LLC, 776 F. App'x 291, 304 (6th Cir. 2019). Many district courts are split on this issue. See Brown
v. Tax Ease Lien Servicing, LLC, 2019 WL 6898663, *3 (W.D. Ky. Dec. 18, 2019).
A sister district court has held, “the word responding is broad enough to encompass
reasonable deposition preparation time. The cases cited above from this district seem to presume
that a limited amount of preparation time is compensable under the rule.” Cohen v. Jaffe, Raitt,
Heuer, and Weiss, P.C., 322 F.R.D. 298, 301 (E.D. Mich. Aug. 23, 2017). “The more sensible
ambit of what is encompassed by the act of responding includes activities which go beyond just
voicing answers or being under oath. Preparation, travel, listening to questions and answering them
are all part and parcel of the act of ‘responding’ to discovery posed in the form of a deposition.”
Id.

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Here, Dr. Stearns’ deposition rate is $800 for the first hour and $250 for every subsequent
15-minute interval. [DN 146 at PageID 1147]. The deposition lasted one hour and thirty-three
minutes—11:09 a.m. to 12:42 p.m. However, the deposition was noticed for 11:00 a.m. The
audiotape of the deposition lasts one hour and thirty-seven minutes. Magistrate Judge King found
that no manifest injustice would occur when considering the time for Dr. Stearns to log on and off
of his computer for the deposition and the time answering the court reporter’s questions at the end.
Further, when allowing payment for a reasonably limited amount of preparation time, Magistrate
Judge King’s order requiring Phillips to pay the remaining $500 is not clearly erroneous or contrary
to the law. Therefore, the Court will overrule both objections and require Phillips to pay the
remaining $500.
IV. Conclusion
For the above stated reasons, IT IS HEREBY ORDERED that:
1.) Phillips’ Objection to and Motion to Vacate Magistrate Judge’s Ruling [DN 201] is
DENIED.
2.) Jefferson’s Cross-Objection to Magistrate Judge’s Order [DN 204] is
OVERRULED.
3.) Phillips shall pay Dr. Stearns $500.00, the amount still owed on Dr. Stearns’ invoice
for his deposition, within ten days of the entry of this Order.
IT IS SO ORDERED.

October 22, 2020

cc: counsel
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