The US District Court Nevada, in the case of Axelson v. HARTFORD INSURANCE COMPANY OF MIDWEST, Dist. Court, D. Nevada 2013, dealt with the issue of whether the treating orthopedic surgeon, Elkanich, was entitled to an expert witness fee for his deposition.

The court found he was, in fact, entitled to an expert witness fee, and stated:

This Court agrees with the interpretation of Rule 26(b)(4)(C)(i) set forth in Hoover v. United States, 2002 WL 1949734 (N.D.Ill. 2002). The court noted that Rule 26(a)(2)(A) requires a party to disclose to other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705. Rule 26(a)(2)(A) includes witnesses who may provide expert testimony at trial, but who are not retained or specially employed to testify at trial and are therefore not required to provide a written report and other information pursuant to Rule 26(a)(2)(B). Treating physicians are an example of such experts. Hoover further noted that 26(b)(4)(C)(i) states that the expert is entitled to a reasonable fee for responding to discovery under Rule 26(b)(4)(A) which states:

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.

As Hoover explained, the first sentence of Rule 26(b)(4)(A) permits the deposition of “`any person who has been identified as an expert whose opinion may be presented at trial.’ (emphasis added). That language plainly relates back to Rule 26(a)(2)(A).” Id., at *5. The court therefore stated:

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).

Hoover, 2002 WL 1949734, at *6.

Unlike some other decisions which rely on policy reasons to hold that treating physicians should be paid a reasonable expert’s fee for their depositions, the Hoover court based its analysis on the plain language of the rule and rejected decisions such as Baker v. Taco Bell Corp. as having misread the rule.

The Court further orders Defendant to pay Dr. Elkanich $1,500 in advance of his rescheduled deposition. The $1,500 shall cover the first hour of Dr. Elkanich’s deposition. If the deposition exceeds one hour, then Defendant shall pay Dr. Elkanich for the additional time based on an hourly rate of $1,500, i.e. if the deposition goes an additional half hour…

 

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