Axelson v. Hartford Insurance Company of the Midwest

Filing 47

ORDER Granting in part 39 Plaintiff's Emergency Motion for Protective Order and subject to the provisions in the order. Signed by Magistrate Judge George Foley, Jr on 03/26/2013. (Copies have been distributed pursuant to the NEF - AC)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

DISTRICT OF NEVADA

7
8
9
10
11
12
13

ESTHER AXELSON,

)
)
Plaintiff,
)
)
vs.
)
)
HARTFORD INSURANCE COMPANY OF THE )
MIDWEST,
)
)
Defendant.
)
__________________________________________)

Case No. 2:11-cv-01827-RCJ-GWF
ORDER
Motion for Protective Order (#39)

14

This matter is before the Court on Plaintiff’s Emergency Motion for Protective Order

15

Regarding the Deposition of G. Michael Elkanich, M.D. (#39), filed on March 13, 2013; Defendant

16

Hartford Insurance Company’s Response to Plaintiff’s Emergency Motion for Protective Order

17

(#43), filed on March 20, 2013; and Plaintiff’s Reply to Defendant’s Opposition to Plaintiff’s

18

Emergency Motion for Protective Order (#45), filed on March 25, 2013. The Court conducted a

19

hearing in this matter on March 26, 2013.

20
21

BACKGROUND AND DISCUSSION
Plaintiff Esther Axelson seeks recovery of underinsured motorist coverage (UIM) benefits

22

from her automobile insurance company, Hartford, for bodily injury damages she allegedly

23

sustained in a motor vehicle accident that occurred on March 18, 2009. Plaintiff also seeks

24

recovery of damages for Defendant’s alleged bad faith refusal to pay the UIM limits of the policy.

25

One of the disputed issues in this case is whether Plaintiff is a candidate for cervical spine surgery

26

as a result of her accident injuries. Plaintiff’s treating orthopedic physician and retained medical

27

expert witness, Dr. Elkanich, opines that she is. Dr. Elkanich has provided a written report

28

regarding his opinion pursuant to Fed.R.Civ.Pro. 26(a)(2)(B). His opinion is based on his review

1

of Plaintiff’s medical records, her deposition testimony and his examination of the Plaintiff.

2

Defendant’s medical expert witness, Dr. Anthony Serfustini, who is also an orthopedic physician,

3

opines that Plaintiff is not a candidate for surgery.

4

The issue on this motion is Dr. Elkanich’s fees for taking his deposition. Dr. Elkanich

5

charges $1,500 per hour for his deposition. He also requires that $1,500 be paid before he will

6

appear for his deposition. Dr. Elkanich’s deposition was initially noticed for January 17, 2013.

7

Defendant Hartford tendered the $1,500 to Dr. Elkanich and deposed him for approximately one

8

hour on that date. Dr. Elkanich requested that the deposition be terminated so that he could attend

9

to his medical duties. Defendant agreed. Defendant subsequently rescheduled Dr. Elkanich’s

10

deposition for April 9, 2013. Dr. Elkanich demands that he be paid another $1,500 in advance of

11

his rescheduled deposition. He also demands that Defendant execute a contract to pay his

12

deposition fees before he will appear for the rescheduled deposition. Defendant states in its

13

opposition that its medical expert, Dr. Serfustini, charges $1,400 an hour for taking his deposition.

14

Hartford now takes the position that Dr. Elkanich may not be entitled to a fee for his

15

deposition, beyond the $40.00 witness appearance fee authorized by 18 U.S.C. §1821. Hartford

16

argues that Dr. Elkanich was Plaintiff’s treating physician and is not entitled to an expert witness

17

fee for deposition testimony about his examination, diagnosis, treatment or prognosis rendered

18

during the ordinary course of providing medical treatment. Hartford relies on a line of cases,

19

including Fisher v. Ford Motor Co., 178 F.R.D. 195, 198 (N.D.Ohio 1998) and Baker v. Taco Bell

20

Corp., 163 F.R.D. 348, 349 (D.Colo. 1995), which hold that a treating physician is not entitled to

21

be paid an expert witness fee by the deposing party pursuant to Fed.R.Civ.Pro. 26(b)(4)(E)(i).

22

Other federal courts, however, hold that treating physicians are entitled to be paid a reasonable

23

expert’s fee for time spent in deposition. See Coleman v. Dydula, 190 F.R.D. 320, 321 (W.D.N.Y.

24

1999); Scheinholtz v. Bridgestone/Firestone, Inc., 187 F.R.D. 221, 222 (E.D.Pa. 1999); and Magee

25

v. Paul Revere Life Ins. Co., 172 F.R.D. 627, 645-46 (E.D.N.Y. 1997).

26

...

27

...

28

...
2

This Court agrees with the interpretation of Rule 26(b)(4)(C)(i)1 set forth in Hoover v.

1
2

United States, 2002 WL 1949734 (N.D.Ill. 2002). The court noted that Rule 26(a)(2)(A) requires a

3

party to disclose to other parties the identity of any witness it may use at trial to present evidence

4

under Federal Rule of Evidence 702, 703, or 705. Rule 26(a)(2)(A) includes witnesses who may

5

provide expert testimony at trial, but who are not retained or specially employed to testify at trial

6

and are therefore not required to provide a written report and other information pursuant to Rule

7

26(a)(2)(B). Treating physicians are an example of such experts. Hoover further noted that

8

26(b)(4)(C)(i) states that the expert is entitled to a reasonable fee for responding to discovery under

9

Rule 26(b)(4)(A) which states:

10

A party may depose any person who has been identified as an expert
whose opinions may be presented at trial. If Rule 26(a)(2)(B)
requires a report from the expert, the deposition may be conducted
only after the report is provided.

11
12

As Hoover explained, the first sentence of Rule 26(b)(4)(A) permits the deposition of “‘any

13
14

person who has been identified as an expert whose opinion may be presented at trial.’ (emphasis

15

added). That language plainly relates back to Rule 26(a)(2)(A).” Id., at *5. The court therefore

16

stated:

17

Based on the foregoing analysis, we conclude that treating physicians
who may be called to testify clearly fall within the definition of an
expert as that term is used in Rule 26(a)(2)(A). The fact that the
report requirement imposed by Rule 26(a)(2)(B) does not apply to a
physician testifying solely as a treater does not change the fact that in
testifying based on his or her work as a physician, the treater will be
calling upon specialized knowledge that can only be provided under
Rule 702. And, because a treating physician will offer expert
testimony under Rule 702, the treater is included within the class of
experts who, if deposed as permitted by Rule26(b)(4)(A), must be
paid a reasonable fee by the party taking the deposition under Rule
26(b)(4)(C)(i).

18
19
20
21
22
23

Hoover, 2002 WL 1949734, at *6.

24
25

...

26
27
28

1

The provision regarding payment of the expert’s fee is now contained in Rule
26(b)(4)(E)(i).
3

1

Unlike some other decisions which rely on policy reasons to hold that treating physicians

2

should be paid a reasonable expert’s fee for their depositions, the Hoover court based its analysis

3

on the plain language of the rule and rejected decisions such as Baker v. Taco Bell Corp. as having

4

misread the rule.

5

Coleman v. Dydula, 190 F.R.D. 320, 324 (W.D.N.Y. 1990) states that in determining what

6

constitutes a ‘‘reasonable fee’’ under Rule 26(b)(4)(C), federal district courts have considered such

7

factors as (1) the witness’s area of expertise, (2) the education and training that is required to

8

provide the expert insight that is sought, (3) the prevailing rates for other comparably respected

9

available experts, (4) the nature, quality and complexity of the discovery responses provided, (5)

10

the cost of living in the particular geographic area, (6) the fee being charged by the expert to the

11

party who retained him, (7) fees traditionally charged by the expert on related matters, and (8) any

12

other factor likely to be of assistance to the court in balancing the interests implicated by Rule 26.

13

Neither party has provided substantial information regarding the factors set forth in Coleman. In

14

view of the fact that Defendant’s retained trial expert witness, Dr. Serfustini, charges $1,400 per

15

hour for his deposition, and counsels’ representation that these fees are in line with those charged

16

by similarly qualified expert witnesses in this community, the Court concludes that Dr. Elkanich’s

17

hourly rate of $1,500 for his deposition in this case is reasonable. The Court expresses no opinion

18

as to what the reasonable hourly rate would be for Dr. Elkanich or another similarly qualified

19

physician who was being deposed solely in his or her capacity as a treating physician. Arguably,

20

the reasonable hourly rate may be different if the physician is merely deposed about his

21

examination findings, diagnosis and treatment rendered during the ordinary course of providing

22

patient care.

23

The Court further orders Defendant to pay Dr. Elkanich $1,500 in advance of his

24

rescheduled deposition. The $1,500 shall cover the first hour of Dr. Elkanich’s deposition. If the

25

deposition exceeds one hour, then Defendant shall pay Dr. Elkanich for the additional time based

26

on an hourly rate of $1,500, i.e. if the deposition goes an additional half hour, Defendant shall pay

27

an additional $750.00. Dr. Elkanich should make himself available for up to two hours of

28

deposition time. Defendant shall promptly pay Dr. Elkanich for any additional compensation that
4

1

may be owed for the deposition. The Court recommends that Dr. Elkanich and counsel schedule

2

the deposition at a date and time that avoids or minimizes interference with Dr. Elkanich’s medical

3

practice. Finally, Defendant or its counsel are not required to execute a contract or agreement with

4

Dr. Elkanich regarding his deposition. The Federal Rules of Civil Procedure, and this Court’s

5

orders in accordance therewith, govern the conditions under which the deposition is taken.

6

Accordingly,

7
8
9

IT IS HEREBY ORDERED that Plaintiff’s Motion for Protective Order is granted, in
part, and subject to the foregoing provisions of this order.
DATED this 26th day of March, 2013.

10
11
12

______________________________________
GEORGE FOLEY, JR.
United States Magistrate Judge

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5