Greater Lakes Ambulatory Surgical Center, PLLC, et al v. State Farm Mutual Automobile Insurance Company

Filing 28

ORDER granting in part 23 Motion to Compel. Signed by District Judge David M. Lawson. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
GREAT LAKES ANESTHESIA, PLLC,
SUMMIT MEDICAL GROUP, PLLC,
GREATER LAKES AMBULATORY
SURGICAL CENTER, PLLC, d/b/a
ENDOSURGICAL CENTER AT GREATER
LAKES,
Plaintiffs,

Case Number 11-10658
Honorable David M. Lawson

v.
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
Defendant.
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ORDER GRANTING IN PART PLAINTIFFS’ MOTION TO COMPEL DEPOSITION
TESTIMONY OF DR. EUGENE MITCHELL AND DETERMINE WHETHER
DR. MITCHELL SHOULD BE COMPENSATED AS AN EXPERT WITNESS
The matter is before the Court on the plaintiffs’ motion to compel deposition testimony of
Dr. Eugene Mitchell and determine whether Dr. Mitchell should be compensated as an expert
witness. The plaintiffs argue that they should not be required to pay Dr. Mitchell’s fee because they
do not intend to ask any questions about his medical opinions. The defendant contends that Dr.
Mitchell is entitled to prepayment of his expert witness fees at the rate of $1,200 for the first hour
and $1,000 for every hour thereafter.
Under Federal Rule of Civil Procedure 26(b)(4)(E), the party seeking discovery must,
“unless manifest injustice would result,” “pay the expert a reasonable fee for time spent in
responding to discovery under Rule 26(b)(4)(A) or (D).” The rule does not require the party seeking
discovery to prepay the expert’s fees. Rather, Dr. Mitchell is entitled only to a reasonable fee for

the time actually spent in the deposition. Therefore, the Court will order that Dr. Mitchell appear
for his deposition as currently scheduled.
As mentioned above, Dr. Mitchell is entitled to a reasonable fee for his time spent responding
to the plaintiffs’ discovery request. The Court is the final arbiter of what constitutes a reasonable
fee and will approve Dr. Mitchell’s fees upon submission of documentation that substantiates his
fees. The parties are reminded that although “[a]n expert’s hourly rate for professional services is
presumptively a reasonable hourly rate for deposition,” Barrett v. Nextel Commc’ns, Inc., No. 0474556, 2006 WL 374757, at *2 (E.D. Mich. Feb. 16, 2006), several factors may be relevant in
determining a reasonable fee for an expert: “(1) the witness’s area of expertise; (2) the education and
training that is required to provide the expert insight which 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 (7) 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).
Accordingly, it is ORDERED that the plaintiffs’ motion to compel deposition testimony of
Dr. Eugene Mitchell and determine whether Dr. Mitchell should be compensated as an expert
witness [dkt. #23] is GRANTED IN PART.
It is further ORDERED that Dr. Eugene Mitchell shall appear for his deposition on
September 29, 2011 at the time and location indicated in the Notice of Taking Deposition.
It is further ORDERED that the defendant shall submit documentation to establish Dr.
Mitchell’s reasonable hourly fee on or before October 12, 2011.

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s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: September 28, 2011

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on September 28, 2011.
s/Deborah R. Tofil
DEBORAH R. TOFIL

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