Duke v. Performance Food Group, Inc.

Filing 138

ORDER determining witness fees. Signed by U.S. Magistrate Judge David A. Sanders on 2/3/14. (def)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION

GEORGE H. DUKE

PLAINTIFF

V.

CIVIL ACTION NO.1:11CV220-MPM-DAS

PERFORMANCE FOOD GROUP, INC.

DEFENDANT

ORDER
This matter is before the court on motion of the plaintiff to determine appropriate fees for his
physician witnesses (# 104). After considering the matter, the court finds as follows:
THE PARTIES’ CONTENTIONS
In the present case, the court is asked to determine whether it will consider treating
physicians as experts entitled to reasonable compensation for their time, or as ordinary fact
witnesses, limited to the statutory witness fee of forty dollars per day. The plaintiff contends he
should be required to pay his treating physician witnesses the daily witness fee of forty dollars
per day prescribed by 28 U.S.C. § 1821. He also challenges the fees requested by his doctors as
unreasonable. The plaintiff’s two treating physicians, Drs. James S. Woodard and John E.
Stanback, who testified at trial pursuant to subpoena, both contend they are expert witnesses and
entitled to reasonable compensation, consistent with their professional standing. Dr. Woodard, a
board-certified internist, demanded and received a fee of $2,400.00 plus mileage. Dr. Stanback,
a family practice doctor, initially requested a fee of $5,000.00 plus mileage, but invoiced
$4,000.00, plus his mileage. Both doctors contend they had to set aside an entire day from their
practices because of the trial subpoenas. Thus Dr. Woodard claims $300.00 dollars per hour,
while Dr. Stanback is claiming $500.00 per hour.

The court, having considered the arguments of the parties and the conflicting authority
from other jurisdictions, finds that treating physicians testifying about the treatment of their
patients will typically be expert witnesses. In testifying about the diagnosis, treatment, and
prognosis of their patients and the impact of injuries or illness on an individual’s present and
future abilities and limitations, physicians are providing expert witness testimony. Fed. R. Evid.
702. They are, therefore, entitled to reasonable compensation for their time in depositions or at
trial pursuant to Rules 26(b)(4)(E) of the Federal Rules of Civil Procedure and Rule
45(d)(3)(A)(iv) and (d)(3)(C)(ii).
The plaintiff argues that he did not select or retain either of these physicians to provide
expert testimony at trial, and only designated these physicians as experts because Local Rule
26(a)(2)(D) required him to do so. That rule mandates that a party “designate physicians and
other witnesses who are not retained or specially employed to provide expert testimony but are
expected to be called to offer expert opinions at trial.” He argues that notwithstanding the
designation, he never qualified the physicians as experts; never tendered them as experts; and
never sought expert opinion testimony from them. Therefore, plaintiff does not believe that he
owes them any amount over the statutory fee. He also voices concerns about whether he can be
required to pay these non-retained experts any fee they demand.
Finding no cases directly on point in Mississippi, the plaintiff cites Robbins v. Ryan’s Steak
House East, Inc., 223 F.R.D. 448 (S.D. Miss. 2004) and Sims v. City of Aberdeen, 2011 WL
132362 (N.D. Miss. Jan. 14, 2011). In Robbins the court held that treating physicians are expert
witnesses, who must be timely and properly designated as such. It did not address the issue of
compensation for these witnesses.

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In what at first glance appears to be a contrary decision, the court in Sims had to decide
whether, and to what extent, it would allow a treating physician to testify, where the physician
had not been designated as an expert but his treatment records were provided in discovery.
There the court allowed the physician to testify about matters set forth in the medical records and
noted that an amendment to the local rules impacted the decision. While the local rule at one
time unconditionally mandated the designation of treating physicians as experts, the amended
rule required expert designations only when non-retained physicians “are expected to be called
to offer expert opinions at trial.” Sims, 2011 WL 132362 at *5, citing L.U.Civ.R. 26(a)(2)(D).
The court held that the treating physician could testify to facts and opinions related to his
treatment of the plaintiff, and explained:
In rare instances a treating physician may be called to testify as to basic facts
known to him as the treating physician without expressing any opinion at all. It
can be argued that such a witness is simply a fact witness who happens to be a
physician and that the calling party should not be required to comply with the
rules regarding expert witness disclosures. This situation is one that is a
departure from the ordinary situation contemplated by the rules and is left to the
discretion of the trial judge.
Id.
However, as the plaintiff concedes, this case is not directly on point. The physician was
prohibited because of the discovery violation from offering expert testimony, and restricted to
the scope of the disclosed records. The court was not considering what testimony was “factual”
versus “expert” at that point in the case. That distinction would be made at the trial.
Woodard and Stanback both cite to the Professional Guide for Attorneys & Physicians. This
guide was jointly drafted and issued by the Mississippi State Bar and the Mississippi State
Medical Association. It seeks to educate and guide physicians about what is expected and useful

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in medical reports requested by attorneys. It explains the difference between treating and
attending physicians to educate the legal community. It is clearly an attempt by the governing
bodies of the two professions to provide a framework and protocols to help members of the
profession work cooperatively together. No doubt, to the extent that both professions abide by
these guidelines, misunderstandings and tensions between these professios can be reduced. This
joint policy both declares that: “The physician has the obligation to cooperate with this patient’s
attorney” and that, “[t]he physician is entitled to charge fair and reasonable compensation for
depositions and court appearances. It is the intention of both professions that a testifying
physician shall not suffer a financial loss because of his appearance at deposition or in court.”
While persuasive, these guidelines, by their terms, are not given the force of law.
CONFLICTING LEGAL AUTHORITY
The federal courts have split on the question of whether treating physicians should be treated
as expert witnesses, and when they agree on the outcome, they justify the outcome with differing
rationales.
Treating Physicians as Ordinary Witnesses
Baker v. Taco Bell Corp., 163 F.R.D. 348 (D. Co. 1995) is typical of the cases that find
treating physicians should be compensated like ordinary fact witnesses. The Baker court found
that treating physicians should be paid only the statutory witness fee. It reasoned:
Treating physicians are not retained for trial. The testimony is based on their
personal knowledge of the treatment of the patient and not information acquired
from outside sources for the purpose of giving an opinion in anticipation of trial.
They are witnesses testifying to the facts of their examination, diagnosis and
treatment of a patient. It does not mean that the treating physicians do not have
an opinion as to the cause of an injury based on their examination of the patient or
to the degree of the injury in the future. These opinions are a necessary part of

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the treatment of the patient. Such opinions do not make the treating physicians
experts as defined by Rule 26 (b)(4)(C).
Id. at 349. Baker also noted that experts specially retained for litigation were required to submit
a written report, but treating physicians did not have to prepare a report.
The Baker court also refused to give effect to Colorado’s similar interprofessional code,
holding that while the court would not prohibit parties from agreeing to different, reasonable
compensation, physicians could not demand more than the statutory fee as a matter of law.
Likewise, the district court in Fisher v. Ford Motor Co., 178 F.R.D. 195 (N.D. Ohio 1998)
held that the plaintiff’s treating physicians were to be treated as ordinary fact witnesses and
therefore due only the statutory fee for their depositions. That court acknowledged that Rule
26(b)(4(C) of the Federal Rules permitted witnesses retained in anticipation of litigation to
receive reasonable compensation because of their specialized expertise, but noted an Advisory
Committee Note providing that a witness “who was an actor or viewer with respect to the
transactions or occurrences that are a part of the subject matter of the lawsuit ... should be treated
as an ordinary witness.” Id. at 197. Baker found, “Courts have consistently held that treating
physicians are not expert witnesses merely by virtue of their expertise in their respective fields.
Only if their testimony is based on outside knowledge, not on personal knowledge of the patient
and his or her treatment, may they be deemed experts.” Id. The court concluded that if a
doctor’s practice meant frequent depositions or court appearances, “[t]he law nonetheless
imposed an obligation on all witnesses to provide their testimony. No exceptions are made for
hardship, inconvenience, or professional status.” Id. at 199. See Patel v. Gayes, 984 F.2d 214,
217-18 (7th Cir. 1993) (treating physicians were expert witnesses only because they relied on

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evidence not arising from their own treatment of the patient and issued opinions about the
standard of care); Mangla v. University of Rochester, 168 F.R.D. 137 (W.D. N.Y. 1996).
Treating Physicians as Expert Witnesses
The courts finding that treating physicians are entitled to reasonable compensation for their
testimony have offered differing rationales for this finding. In one group of cases, the courts
have decided as a matter of policy that physicians must be provided with reasonable
compensation. Typical of this line of cases is Haslett v. Texas Industries, Inc., 1999 WL 354227
(N.D. Tex., May 20, 1999). The court cited with approval the Fisher case, supra, for authority
for its finding that Rule 26(b)(4)(C), which requires reasonable compensation to an expert
witness, did not apply to the plaintiff’s treating physician witness, because “[t]his rule does not
apply ‘to the expert whose information was not acquired in preparation for trial, but rather was
an actor or viewer’” with respect to the occurrences in the lawsuit. Id. at *1. Nevertheless, the
Haslett court noted that it was customary within the district to provide physician witnesses with
compensation over the statutory fee. Furthermore the court noted: “Physicians provide
invaluable services to the public and should be remunerated for their time when they cannot
deliver medical care. They often have substantial overhead costs that they incur whether they
are creating a patient or testifying about one.” Id. at 2. Litigators and clients typically “respect
the need to compensate physician-witnesses to the extent necessary to cover their overhead costs
and to pay them a fee commensurate with their professional standing and special expertise.” Id.
See Harvey v. Shultz, 200 WL 33170885 (D. Kan. Nov. 16, 2000) (Citing Haslett, a Kansas
interdisciplinary code and the practice in the state courts of Kansas, the court decided it had
discretionary authority to order compensation above the statutory witness fee.)

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Another group of courts have found treating physicians will typically provide expert
testimony and thus be entitled to reasonable compensation, but base their findings on the Federal
Rules of Civil Procedure and the Federal Rules of Evidence. See Lamere v. N.Y. State Office for
the Aging, 223 F.R.D. 85 (N.D. N.Y. 2004).
In Weimer v. Honda of America Manufacturing, Inc., 2008 WL 4503562 (S.D. Ohio Oct. 1,
2008), the court rejected the holding of its sister court in Fisher and explained why the testimony
of treating physicians is expert testimony. The Weimer court first pointed out that Fisher relied
on a 1970 Comment to the Rules that explained witnesses who did not acquire their knowledge
in anticipation of litigation were not experts for the purpose of Rule 26. The Weimer court
declined to follow Fisher because “it fails to recognize that Rule 26(b)(4) was substantially
revised in 1993. Prior to that date, Rule 26(b)(4) addressed only discovery of experts whose
opinions were ‘acquired or developed in anticipation of litigation or for trial....’ Rule 26(b)(4)
(1970).” Id. at 2.
The Weimer decision found the 1993 amendments expanded the scope of the rule to address
discovery of three categories of experts:
1. Retained experts who may testify at trial and from whom a report is required;
2. Non-retained experts who are disclosed as witnesses who may offer Rule 702
testimony at trial but who are not required to submit a report; [and]
3. Retained experts who will not testify at trial (consultants).
Id. (citing Hoover v. United States, 2002 WL 1949734 at *4(N.D. Ill 2002)).
Furthermore the Weimer court noted that beginning with the 1993 amendments, a Rule 26
“expert” is defined by reference to the Federal Rules of Evidence. An expert is “any person

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who may be used at trial to present evidence under Rule 702, 703, or 705.” Fed. R. Civ. P
26(a)(2)(A) (1993).
The obvious question here is whether the physicians’ testimony falls within Rule 702's
definition of expert testimony or Rule 701, which allows lay testimony in the form of an opinion.
To offer expert testimony, a witness must be qualified as an expert by “knowledge, skill,
experience, training or education.” Fed. R. Evid. 702. Such an expert may testify in “the form
of an opinion or otherwise” if their specialized knowledge will assist the trier of fact and the
testimony is based upon sufficient facts or data; is the product of reliable principles or methods;
and the expert has in fact reliably applied those principles and methods to the facts of the case.
Id. While there may be elements of purely factual testimony, a treating physician will usually
also offer testimony within the ambit of Rule 702. As noted in Weimer, “the treating physician
who testifies about examination, diagnosis, and treatment of a patient necessarily draws upon his
skill, training, and experience as a doctor. Weimer, 2008 WL 450362 at *2.
After considering the matter, this court adopts the reasoning of the court in Weimer and finds
that treating physicians will typically qualify as expert witnesses. Furthermore, as the Weimer
court held, reasonable compensation to expert witnesses can be compelled under Fed.R.Civ.P 45
where, as here, the doctor testifies at trial pursuant to subpoena.

TESTIMONY IN THIS CASE
This court has reviewed the testimony of the two physicians at trial to determine the nature of
testimony given. Duke made no attempt to qualify either of these witnesses as an expert witness,

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beyond the bare fact that each is a practicing physician, and the plaintiff never tendered either as
an expert witness. The court nevertheless finds that each offered expert testimony fitting the
definition of Rule 702 of the Federal Rule of Evidence.
Dr. Woodard, a hospitalist during his treatment of the plaintiff, described a transient ischemic
attack, (TIA) and how it is clinically distinguished from a stroke, or cerebrovascular accident.
He testified that Duke had an echocardiogram of the heart, which was done to determine if
clotting had caused Duke’s symptoms. He explained the difference between the levels of care
between the intensive care unit, the step-down unit and a regular hospital room. On crossexamination, he testified that the plaintiff’s symptoms resolved quickly and that this was
clinically consistent with a TIA or a mild stroke. On re-direct, after being directed to review a
scan, he confirmed that the plaintiff had a stroke and that an individual could have lasting effects
even from a mild stroke.
Dr. Stanback testified to his treatment of Duke, including his examination of the plaintiff.
Duke had a normal neurological examination, normal symmetry of face, and equal strength after
his hospital stay. Stanback testified that by definition the symptoms of a TIA would resolve in
about twenty-four hours. If symptoms persisted beyond that time, a stroke would be diagnosed.
He testified that Duke was still having some symptoms five months later, when symptoms would
normally have subsided more quickly. By September 7, 2010, he opined the plaintiff had
reached “maximum medical benefit” and could return to his work without restrictions.
This testimony encompasses specialized scientific information, well beyond the ken of lay
persons, even when set forth in a declarative “factual” manner. Each witness offered opinions
based on their factual knowledge, and each witness applied their medical expertise. While there

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may be cases where physicians truly are factual as opposed to expert witnesses, this case is not
one of them.
REASONABLE FEES
The plaintiff has voiced an understandable concern about the fees for which he may be
held liable, where neither he nor his physicians have established a relationship for the purposes
of procuring expert witness testimony. However, the expert is entitled to a reasonable fee for his
services, and the court has the authority to determine what constitutes a reasonable fee. See
Knight v. Kirby Inland Marine, 482 F.3d 347, 356 (5th Cir. 2007). “There must be some
reasonable relationship between the services rendered and the remuneration to which the expert
is entitled. Unless the courts patrol the battlefield to ensure fairness, the circumstances invite
extortionate fee setting.” Fiber Optic Designs, Inc. v. New England Pottery, LLC, 262 F.R.D.
586, 590 (D. Colo. 2009). Furthermore, the party seeking reimbursement has the burden of
demonstrating the fee sought is reasonable, and the court may use its discretion to determine a
reasonable fee. New York v. Solid Chem. Co., 210 F.R.D. 462, 468 (W.D. N.Y. 2002).
To determine what constitutes a reasonable fee, the court starts with the, “basic premise,
the expert’s fee should not be so high as to impair a party’s access to necessary ... [evidence] or
result in a windfall to the expert.” Grady v. Jefferson County Board of County Commissioners,
249 F.R.D. 657, 659 (D. Colo. 2008). Among the factors a court may consider to determine the
reasonableness of a fee, including: (1) the witness’s area of expertise; (2) the education and
training required to provide the insight that is sought; (3) prevailing rates for other comparable
experts; (4) the nature, quality and complexity of the responses provided; (5) the cost of living in

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a particular geographic area; and (5) the fees traditionally charged by the expert on related
matters. Magee v. The Paul Revere Life Ins. Co, 172 F.R.D. 627, 645 (E.D. N.Y. 1997).
Both doctors traveled four hours round trip. Though the court allowed each witness to
testify out of turn, these doctors had to prepare for some delays. Consequently, the court finds
that each is entitled to be compensated for eight hours of time.
Stanback is a family practitioner, and the only physician staffing his clinic. Twenty-five
patients had to be rescheduled because of his court testimony. Dr. Woodard, a board-certified
internist, likewise cancelled all patient visits on the day of his testimony. Unfortunately, neither
physician has provided the court with any specific information related to his overhead or
expected earnings for a day of his medical practice.
However the court finds no reason to doubt that the $300.00 per hour charged by Dr.
Woodard is reasonable. It is within the range of hourly charges this court sees in motions seeking
attorneys’ fees. While the $500.00 per hour sought by Dr. Stanback may also be reasonable, he
has provided the court with no information to explain the difference between the fee he seeks and
the fee sought by Woodard. Broushet v. Target Corp., 274 F.R.D. 432 (E.D. N.Y. 2011)(Court
set the fee for experienced orthopedist at $400.00 per hour and limited the time involved in
preparing for and giving a deposition).
CONCLUSION
Accordingly, the court finds that the treating physicians in this case testified as expert
witnesses and are therefore entitled to reasonable compensation for their time. Dr. Stanback shall
be paid at the rate of $300.00 per hour for eight hours, plus his mileage. This shall be paid within

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twenty-one days. Dr. Woodard has received his fee which is hereby determined to be reasonable.
SO ORDERED this the 3rd day of February, 2014.

/s/ David A. Sanders
UNITED STATES MAGISTRATE JUDGE

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