Miller v. Credit et al
Filing
46
ORDER denying 24 Motion to Set Rate ; granting in part and denying in part 28 Motion Reset Scheduling Deadlines. This litigation and all related proceedings are hereby STAYED for 90 days from the date of this order. Within 90 days of t his order, defendants may submit an application for additional stay under 50 App. U.S.C. § 522(d)(1). Such application shall contain the information required under 50 App. U.S.C. § 522(b)(2). Signed by Magistrate Judge Richard L. Bourgeois, Jr on 5/1/2013. (LLH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
CHRISTOPHER MILLER
CIVIL ACTION
VERSUS
NO. 12-00138-BAJ-RLB
CAPTAIN CREDIT, ET AL.
ORDER
This matter is before the court on a referral from the district court on defendants’ motion
to reset scheduling deadlines and continue the trial (rec. doc. 28) and plaintiff’s motion to set rate
(rec. doc. 24). Both motions are opposed (rec. docs. 34 and 35.) The court heard oral argument
on April 30, 2012, on the motions.
Discussion
I.
Defendants’ Motion to Reset Scheduling Deadlines and Continue the Trial
Defendants seek a stay of this proceeding under the Servicemembers Civil Relief Act (the
“SCRA”), 50 App. U.S.C. §§ 501 et seq., grounded on defendant Darius Credit’s activation for
military service. With their application for stay, defendants submitted a letter dated January 18,
2013, from Captain Jerry A. Rodriguez, defendant Credit’s commanding officer, to Elayn Hunt
Correctional Center (“EHCC”), defendant Credit’s employer (rec. doc. 28-2.) The letter stated
that defendant Credit had been “selected for an upcoming deployment to Kuwait” and after an
“initial report date” of January 31, 2013 at his home station, his unit would “proceed on February
3, 2013 to Fort Bliss, Texas with follow on travel to Kuwait.” The letter further states that
defendant Credit’s “unit is expected to return from this deployment in January of 2014.”
A party to a civil action who is in military service and has received notice of the
proceeding may be entitled to a stay under the SCRA.
50 App. U.S.C. § 522(a).
Upon
application, a court shall stay the proceeding for at least 90 days if the servicemember submits
information satisfying the requirements of Section 522(b)(2). 50 App. U.S.C. § 522(b)(1). First,
the application must include a “letter or other communication setting forth facts stating the
manner in which current military duty requirements materially affect the servicemember’s ability
to appear and stating a date when the servicemember will be available to appear.” 50 App.
U.S.C. § 522(b)(2)(A). Second, the application must include a “letter or other communication
from the servicemember’s commanding officer stating that the servicemember’s current military
duty prevents appearance and that military leave is not authorized for the servicemember at the
time of the letter.” 50 App. U.S.C. § 522(b)(2)(B).
At oral argument, defense counsel represented that it was her understanding that
defendant Credit was currently deployed to Kuwait. That representation is consistent with the
timeline provided by the January 18, 2013 letter. Defense counsel’s representation and the
January 18, 2013 letter satisfy the first set of requirements under Section 522(b)(2)(A), namely
that defendant Credit’s deployment to Kuwait materially affects his ability to appear in this
proceeding and defendant Credit will be available to appear no sooner than sometime in
February 2014.
The letter, however, does not provide sufficient information to satisfy the second set of
requirements under Section 522(b)(2)(B). Although it is a “letter or other communication from
the servicemember’s commanding officer,” it does not state “that the servicemember’s current
military duty prevents appearance and that military leave is not authorized for the servicemember
at the time of the letter.” 50 App. U.S.C. § 522(b)(2)(B). Accordingly, defendants’ application
for a mandatory stay under the SCRA is deficient.
Nevertheless, this Court has discretion to deny or grant the stay based upon its inherent
power to control its docket. Bayer AG v. Novartis Crop Prot. Inc., No. 98-996-C-M2, 2000 WL
1124513, at *2 (M.D. La. June 29, 2000).
Other federal district courts have granted
discretionary stays on their own motion where the absence of the servicemember would
materially prejudice the prosecution of an action, but the servicemember’s application for a
mandatory stay fails to satisfy the requirements Section 522(b)(2). See, e.g., Keane v. McMullen,
No. C 07-04894 SBA, 2009 WL 331455 (N.D. Cal. Deb. 11, 2009) (granting stay for full period
of servicemember’s service on active duty); Bailey v. Robinson, No. C08-1020RSL, 2009 WL
1444650 (W.D. Was. May 20, 2009) (granting stay of over 4 months); United States v. Smith,
CIV 04 859 C, 2006 WL 2338267 (W.D. Okla. Aug. 10, 2006) (granting stay for 90 days).
Accordingly, this Court will stay these proceedings for 90 days from the date of this
order. Prior to the termination of the stay, defendants are advised to submit an application for
additional stay under 50 App. U.S.C. § 522(d)(1) containing the information required under 50
App. U.S.C. § 522(b)(2).
II.
Plaintiff’s Motion to Set Rate
The parties’ briefing submitted on plaintiff’s motion to set rate raises three interrelated
issues: (1) whether the hourly deposition rate of Dr. Joe Morgan of the Bone and Joint Clinic of
Baton Rouge, Inc. is reasonable; (2) whether the independent medical examination (IME) report
submitted by Dr. Morgan satisfied Fed. R. Civ. P. 35(b)(2); and (3) whether plaintiff must bear
the cost of obtaining copies of his own medical reports obtained by defendants and provided to
Dr. Morgan for the purpose of conducting the IME.
Plaintiff represents in his motion that he was examined during the “DME” by Dr.
Morgan, and that he now wishes to take the deposition of Dr. Morgan following the examination
and his report. Dr. Morgan seeks to charge $1,500.00 per hour for the deposition. Plaintiff
argues that $1,500 per hour for a deposition is above the “customary and predominating rate for
a medical expert deposition” and seeks an order from this Court setting a reasonable rate for the
deposition.
Defendants oppose plaintiff’s motion by arguing that the fee charged by Dr. Morgan is
reasonable and should be allowed. Defendants offer evidence to show that the fee is consistent
with fees charged for depositions by plaintiff’s own treating physician, Dr. Louis Blanda, an
orthopaedic surgeon. Defendants also provide that the fee they were charged by Dr. Morgan for
the IME and report is consistent with the fee charged by Dr. Morgan for a deposition.
It remains within the Court’s discretion to set the expert deposition fee at an amount that
it deems reasonable. See Borel v. Chevron U.S.A., Inc., 265 F.R.D. 275, 276 (E.D. La. 2010).
Courts consider the following criteria in determining the reasonableness of the expert witness fee
at a deposition: “(1) the witness’s 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 charged to the party who retained the expert; (6) fees traditionally charged by the
expert on related matters; and (7) any other factor likely to assist the court in balancing the
interest implicated by Rule 26.” Id.
Dr. Morgan is a Board certified orthopaedic surgeon. Plaintiff offers no evidence to
support his argument that Dr. Morgan’s fee is “above the customary and predominating rate for a
medical expert deposition” or that his fee is unreasonable (rec. doc. 24). Defendants, however,
offer evidence that Dr. Morgan’s deposition fee of $1,500.00 per hour is consistent with the
“prevailing rates of other comparably respected available experts,” including plaintiff’s own
treating physician in this case, Dr. Blanda, a Board certified orthopaedic surgeon with less
experience than Dr. Morgan who charges $1,300 per hour for depositions (rec. doc 43, Exhibit A
and B). Defendants also state that Dr. Morgan charged them a fee of $2,000 for the IME and the
report (rec. doc. 25.) Furthermore, this Court has ruled in a recent order that $1,500 per hour is a
reasonable fee for the deposition of a Board certified orthopaedic surgeon in the community,
based in part on the review of fees charged by seven local physicians for deposition testimony.
See Adams v. Dolgencorp, LLC, No. 11-cv-00784-JJB-RLB, Rec. Doc. 113 (M.D. La. Mar. 28,
2013). 1
In light of plaintiff’s failure to offer evidence to show that the $1,500 deposition fee
charged by Dr. Blanda is unreasonable, the evidence offered by defendants which indicates that
the fee is a reasonable fee, and this Court’s ruling just over one month ago that such fee is a
reasonable fee, the Court will deny plaintiff’s motion to set rate.
Plaintiff also argues that Dr. Morgan’s IME report does not meet the standards of Fed. R.
Civ. P. 35(b)(2) because the “report merely states a litany of records and a conclusion” (rec. doc.
24-2.) Defendants countered that the IME report is sufficient because it “clearly states the
findings of the IME, Dr. Morgan’s diagnosis and the results of the tests he performed during the
examination” (rec. doc 25.) After a review of the IME report, the Court finds that its contents
are sufficient for the purpose of Fed. R. Civ. P. 35(b)(2).
To the extent plaintiff’s position is that Dr. Morgan’s findings in the IME report,
including any diagnoses, conclusions, or results of any tests, are unsupported or conclusory, that
issue can be explored further by plaintiff at Dr. Morgan’s deposition. On April 11, 2013,
defendants filed with the Court a copy of their notice designating Dr. Morgan as one of their
1
Plaintiff’s counsel in this action was also Plaintiff’s counsel in Adams v. Dolgencorp, LLC, No.
11-cv-00784-JJB-RLB.
expert witnesses (rec. doc. 40.) At oral argument, defense counsel represented that defendants
have provided plaintiff with Dr. Morgan’s expert report. Plaintiff has not yet reviewed the
expert report, but will have an opportunity to depose Dr. Morgan regarding his expert report and
opinions submitted on behalf of the Defendants at a later time.
Finally, plaintiff argued that he was entitled to a copy of all of his medical records
obtained by defendants by subpoena and provided to Dr. Morgan to conduct the IME.
Defendants argued that plaintiff must pay for any copying costs required for producing those
medical records. At oral argument, defense counsel advised the Court that defendants had
provided all outstanding medical records requested by plaintiffs without charge. The issue is
therefore moot.
For the foregoing reasons,
IT IS ORDERED that defendants’ motion to reset scheduling deadlines and continue the
trial (rec. doc. 28) is GRANTED IN PART and DENIED IN PART. This litigation and all
related proceedings are hereby STAYED for 90 days from the date of this order. Within 90 days
of this order, defendants may submit an application for additional stay under 50 App. U.S.C. §
522(d)(1). Such application shall contain the information required under 50 App. U.S.C. §
522(b)(2).
IT IS FURTHER ORDERED that plaintiff’s motion to set rate (rec. doc. 24) is
DENIED.
Signed in Baton Rouge, Louisiana, on May 1, 2013.
S
RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE
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