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

Filing 34

ORDER denying 30 Plaintiff's Motion to Compel Deposition Testimony. Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

GREATER LAKES AMBULATORY SURGICAL
CENTER, PLLC, et al.,
Plaintiffs,
v.

Case No. 11-11003

STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
Defendant.
/
ORDER DENYING PLAINTIFFS’ “MOTION TO COMPEL
DEPOSITION TESTIMONY . . .”
Pending before the court is Plaintiffs’ “Motion to Compel Deposition Testimony
. . . .” The court conducted a telephone status conference on September 21, 2011, at
which time the parties resolved a discovery dispute related to Plaintiffs’ expert witness
Dr. Louis Radden. On the following day, September 22, 2011, Plaintiffs filed the instant
motion1 seeking: (1) to compel the deposition of Defendant’s expert, Dr. Eugene
Mitchell; (2) to declare that Dr. Mitchell is not entitled to an expert witness fee; and (3)
alternatively, if Dr. Mitchell is entitled to a fee, an order setting Dr. Mitchell’s fee at $150
per hour. Plaintiffs allege that Defendant’s counsel has stated that Dr. Mitchell will not
appear at a deposition scheduled for September 29, 2011, unless Plaintiffs tender, prior
to the deposition, a monetary amount equivalent to one hour of Dr. Mitchell’s expert
witness fee. (Mot. 6.) Having reviewed the motion, the court concludes a hearing on

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The court is left wondering why the issue presented here was not discussed
and resolved during the September 21 telephone conference.

the matter is unnecessary. See E.D. Mich. LR 7.1(f)(2). For the following reasons, the
court will deny Plaintiffs’ motion.
Under Federal Rule of Civil Procedure 26, Plaintiffs may depose Dr. Mitchell, but
must also pay him reasonable expenses related to his deposition. Rule 26 permits a
party to depose “any person who has been identified as an expert whose opinions may
be presented at trial.” Fed. R. Civ. P. 26(b)(4)(A). “Unless 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 under Rule 26(b)(4)(A) . . . .”
Fed. R. Civ. P. 26(b)(4)(E)(i). Plaintiffs argue that they are not required to pay Dr.
Mitchell because the deposition is meant “solely to inquire about facts surrounding his
financial relationship with defendant and bias,” and Plaintiffs’ counsel will not ask any
questions related to the area of Dr. Mitchell’s expertise. Such a delineation is not
supported by Rule 26. Rule 26(b)(4)(E) does not distinguish between the types of
questions that may be posed to an expert witness at a deposition. Instead, it states in
clear and unequivocal terms that “the court must require” the party seeking the
deposition of an expert witness who may testify at trial to pay reasonable fees to the
expert unless manifest injustice would result. Plaintiffs have not shown that manifest
injustice will result from having to compensate Dr. Mitchell. Therefore, Plaintiffs may
depose Dr. Mitchell, but may not do so free of charge.
Plaintiffs also argue that Dr. Mitchell should be compelled to attend the
deposition even if they do not tender $1,200 prior to the deposition as requested by
Defendant’s counsel. Rule 26 does not establish whether an expert should be
compensated prior to, during, or after a deposition, presumably believing that attorneys

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can, at a minimum, agree on a time of payment for an expert witness. The court
declines to establish a payment schedule for the parties and will not compel the expert’s
attendance. However, the court will reiterate a condition it placed on Plaintiffs’ untimely
production of their expert’s Rule 26(a)(2)(B) report: In the event that a party is unable to
depose the opposing party’s expert because of a lack of good faith on the part of the
proposing party, the expert witness will be deemed unavailable for any further purpose
in this case. With that said, the court is reasonably confident that counsel will be able to
agree on a method to compensate Dr. Mitchell without any further guidance.
Plaintiffs final request is an order establishing Dr. Mitchell’s hourly rate at $150.
Under Rule 26(b)(4)(E), the party seeking discovery from an expert witness must pay a
“reasonable fee.” Plaintiffs contend that Dr. Mitchell’s hourly rate ($1,200 for the first
hour and $1,000 for each subsequent hour of the deposition) is excessive, and that an
hourly rate of $150 is reasonable. During the conference with the court one day before
asserting their claim about Dr. Mitchell’s hourly rate, Plaintiffs acknowledged that their
expert witness, Dr. Radden, requested an hourly rate of $2,000 from Defendant. The
court lacks a sufficient basis to establish a reasonable hourly rate Dr. Mitchell may
charge Plaintiffs for his deposition, but is confident that in light of Plaintiffs’ expert’s
request of an hourly rate of $2,000 (a rate accepted by Defendants, as the court
recalls), Plaintiffs’ suggestion of $150 per hour is inconsistent with sound judgment. In
the telephone conference, the parties resolved Defendants’ objections to Plaintiffs’
expert’s hourly rate by agreeing to work out a rate that was acceptable to both parties,
and the court anticipates, indeed expects, that the parties will achieve a similar result in
this discovery issue. In the event counsel are unable adequately to resolve this issue, a

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party may file a motion asking the court to establish a reasonable fee. In such event,
the court will do so, and will no doubt also consider whether costs and attorney fees
should be imposed. Accordingly,
IT IS ORDERED that Plaintiff’s “Motion to Compel Deposition Testimony . . .”
[Dkt. # 30] is DENIED.

s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: September 28, 2011
I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, September 28, 2011, by electronic and/or ordinary mail.
s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]

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