Harvey vs. Rayne et al

Filing 47

MEMORANDUM RULING granting 46 Motion to Set Expert's Deposition Fee. The expert fee of Dr. Charles Speller is hereby reduced to $500.00. Signed by Magistrate Judge C Michael Hill on 11/5/2009. (crt,Keifer, K)

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA LAFAYETTE-OPELOUSAS DIVISION CHRISTOPHER S. HARVEY VS. CITY OF RAYNE ABC INS. CO. JOHN JASON POTIER Individually & in the course and scope of his employment with the City of Rayne as a police officer LOUIS D. DOMINGUE Individually & in the course and scope of his employment with the City of Rayne as a police officer LEIF J. MECHE Individually & in the course and scope of his employment with the City of Rayne as a police officer CARROLL STELLY In his official capacity as Chief of Police of the City of Rayne CIVIL ACTION NO. 08-0699 JUDGE HAIK MAGISTRATE JUDGE METHVIN

MEMORANDUM RULING (Rec. Doc. 46) Before the court is an Unopposed Motion to Set Expert's Deposition Fee filed by d e f en d a n ts , the City of Rayne; Chief Carroll Stelly, in his official capacity as Chief of Police o f the City of Rayne; Officer John Jason Potier, individually and in his official capacity as a police officer for the City of Rayne; Officer Leif J. Meche, individually and in his official c a p ac ity as a police officer for the City of Rayne; and Officer Lonis D. Domingue, in d iv id u a lly and in his official capacity as a police officer for the City of Rayne.

D ef en d an ts seek an order setting an appropriate deposition fee to be paid to plaintiff's tre a tin g physician, Dr. Charles Speller for his trial deposition. For the following reasons the m o tio n is granted and Dr. Speller's fee is set at $500.00. Background P l ain tif f 's complaint alleges a violation of his Fourth and Fourteenth Amendment rig h ts based upon the following facts: Plaintiff claims he was falsely arrested/unlawfully s e iz e d and brutally beaten by officers from the Rayne Police Department while he was la w f u lly conducting himself and drinking a beer at Debbie's Giddy Up & Go, a bar located in Acadia Parish, but not within the city limits of Rayne. Plaintiff complains that Officers P o tie r, Domingue, and Meche, of the Rayne City Police Department, approached plaintiff in the bar and asked him to walk outside. When plaintiff put his beer down, the officers alleg ed ly grabbed, then held plaintiff and severely beat him, threw him into the police car, a n d Officer Domingue sprayed him with pepper spray. The plaintiff further alleges that the o f f ice rs left plaintiff in handcuffs in the back of the car until he became ill from the effects o f the pepper spray, while Domingue and the other officers stood and laughed at him. Plaintiff claims he was taken to the Rayne Police Department, and, while Officer M e c h e stayed outside to keep watch, Officers Potier and Domingue severely beat Harvey on b o th of his legs and knees with their batons, most particularly his left leg and knee, trying to g e t him to fight back. Plaintiff seeks damages for his alleged injuries.

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T h e Motion The following facts are undisputed. Defendants scheduled the deposition of Dr. S p e ller for August 28, 2009. Dr. Speller sent the wrong patient medical records prior to th e deposition which was not discovered until the start of the deposition. Defendants had a lre a d y prepaid Dr. Speller a $2,500 deposition fee. The parties agreed to continue the d e p o s itio n with no new fee to be required. When defendant attempted to re-schedule the deposition, Dr. Speller advised that h e would require another $2,500 payment, making the total fee $5,000. Defendants c o n te n d that this is unreasonable. Rule 26(b)(4)(C)(I) provides that, unless manifest injustice would result, courts s h a ll require that the party seeking discovery pay the expert a reasonable fee for the time sp e n t responding to discovery.1 Compensating an expert for his deposition time is

1

Rule 26(b)(4) provides:

T r ia l Preparation: Experts (A) Expert Who May Testify. A party may depose any person who has been id e n tifie d as an expert whose opinions may be presented at trial. If Rule 2 6 (a )(2 )(B ) requires a report from the expert, the deposition may be conducted o n ly after the report is provided. (B ) Expert Employed Only for Trial Preparation. Ordinarily, a party may not, b y interrogatories or deposition, discover facts known or opinions held by an e x p e rt who has been retained or specially employed by another party in a n tic ip a tio n of litigation or to prepare for trial and who is not expected to be c a lle d as a witness at trial. But a party may do so only:

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m a n d a to ry under Rule 26(b)(4)(C)(I), because it would be unfair to require one party to s u b s id iz e discovery for the opposing party. Royal Maccabees Life Ins. Co. v. M alac h insk i, 2000 WL 1377111, 5 (N.D. Ill. 2000) (citation omitted). The mandatory n a tu re of this Rule is tempered by two limitations: 1) the costs may not be imposed if d o in g so would result in manifest injustice; and 2) the expert's fee must be reasonable. Id. (fo o tno te, citation omitted). When parties submit their discovery costs, the district court h a s discretion to limit or alter those costs if they appear to be unreasonable. See Knight v. K irb y Inland Marine Inc., 482 F.3d 347 (5th Cir. 2007). Dr. Speller seeks to require $2,500 in addition to the $2,500 already paid him b e c au s e he has to prepare again. Defendants submit medical records showing that

(I) as provided in Rule 35(b); or (ii) on showing exceptional circumstances under which it is impracticable for th e party to obtain facts or opinions on the same subject by other means. (C ) Payment. Unless manifest injustice would result, the court must require th a t the party seeking discovery: (I) pay the expert a reasonable fee for time spent in responding to discovery u n d e r Rule 26(b)(4)(A) or (B); and (ii) for discovery under (B), also pay the other party a fair portion of the fees a n d expenses it reasonably incurred in obtaining the expert's facts and o p in i o n s . F e d .R .C iv .P . 26(b)(4), emphasis added.

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p l a in t if f had only 3 office visits with Dr. Speller. Plaintiff does not dispute defendants' e s tim a te that Dr. Speller's deposition will last for only approximately an hour. A review of the medical records submitted by defendants show that they include resu lts of blood work, a one-page MRI report, a one-page x-ray report, a medical history o f plaintiff, and Dr. Speller's assessments in connection with the three office visits. After reviewing the record and briefs, under the circumstances presented, where D r. Speller treated plaintiff only three times, and the medical records consist of a p p ro x im a te ly 20 pages, the undersigned finds that the original fee of $2,500 is wholly unreasonable and unjustified. The requested fee amounting to a total of $5,000 is a b so lu te ly unreasonable and unconscionable. T h e medical records show that Dr. Speller provided routine pain management to p la in tif f for which he issued three prescriptions rather than any complicated specialized tre a tm e n t. Based on the foregoing, the undersigned concludes that $500 is a reasonable a m o u n t for Dr. Speller's fee and his fee shall be reduced accordingly. The court will not c o u n t e n a n c e gouging by expert witnesses, whether physicians or not. In the end, these f e e s are the responsibility of the clients, and the Court will not allow expert witnesses, w h e th e r physicians are not, to unfairly deplete the resources of litigants, whether p l a in t if f s or defendants.

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If Dr. Speller refuses to voluntarily appear for his deposition, counsel should feel f re e to issue a subpoena to compel Dr. Speller to appear and testify. The court of course, w ill enforce the subpoena if ignored. Accordingly, IT IS HEREBY ORDERED that defendants' motion to set expert fees is G R A N T E D and the expert fee of Dr. Charles Speller is hereby reduced to $500.00. Signed at Lafayette, Louisiana on November 5, 2009.

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