Opinion
CIVIL NO. S-02-1418
November 25, 2002
MEMORANDUM OPINION AND ORDER
The plaintiff, Paul F. Yazdani, filed this diversity action alleging breach of contract based on a disability claim made under an insurance policy issued by the defendant. (Paper No. 1 at 2). The plaintiff moved for a protective order to prevent certain expert depositions. (Paper No. 8). The defendant opposed the plaintiff's motion and filed a motion to compel responses and the depositions. (Paper No. 10). The plaintiff replied by letter (Paper No. 13) and the defendant filed a response. (Paper No. 12). The plaintiff filed a final pleading regarding this matter on October 30, 2002. (Paper No. 14). The matter is thus fully briefed and ripe for decision.
By order dated October 15, 2002, this case was referred to the undersigned for the resolution of the plaintiff's motion for a protective order. (Paper No. 9). A hearing was held on November 20, 2002 by telephone. This memorandum opinion explains the Court's rulings on the discovery disputes addressed during that hearing.
For the reasons set forth below, the plaintiff's motion for a protective order is denied and the defendant's motion to compel depositions is granted. However, the defendant's motion to compel responses to interrogatories and requests for production is denied. The Court thus rules that the plaintiff may depose the witnesses at issue in this motion. The Court also rules that, in accordance with Local Rule 104.11, the defendant, as the party deposing the plaintiff's witnesses, must compensate those witnesses who are treating physicians in accordance with the rates specified in subpart (b) of that rule for time spent in deposition and associated travel.
The defendant's motion also sought to compel responses to certain interrogatories and requests for production, to which no responses had been received at the time the defendant filed the motion. (Paper No. 10 at 7). However, during the hearing, the parties indicated that the plaintiff had responded to those requests since the motion had been filed. Thus, the defendant's motion to compel responses to the interrogatories and the requests for production is denied. Of course, if upon reviewing those responses, the defendant believes they are insufficient under the rules, the defendant may file a new motion to compel.
I. Background
The Court entered a scheduling order that required the plaintiff to name his experts by August 12, 2002 and for depositions of the plaintiff's experts to be completed by both parties by October 14, 2002. (Paper No. 6). The scheduling order further requires all other discovery to be completed by February 10, 2003. (Id.). The plaintiff designated, by the specified deadline, fourteen witnesses (including the plaintiff) as experts. (Ex. B to Paper No. 8). However, due to numerous scheduling and communication problems and at least one allegedly lost letter, as described in the parties' motions, the defendant was unable to depose all of the witnesses designated as experts by the plaintiff by October 14, 2002. (Papers Nos. 8, 10, 11, 12, 13). Thus, because the defendant had failed to meet the deadline for deposition of the plaintiff's experts, the plaintiff argued that the defendant should be precluded from deposing these witnesses. (Papers Nos. 8, 13, 14). The parties have also raised, in their pleadings, the issue of the proper compensation for these witnesses.
II. Discussion
The Court agrees with the defendant's argument that, while the plaintiff designated treating physicians as "expert" witnesses, they are more properly characterized as fact or hybrid witnesses. See, e.g., Sullivan v. Glock, 175 F.R.D. 497 (D.Md. 1997). The scheduling order does not differentiate between expert and hybrid witnesses. (Paper No. 6). Moreover, the plaintiff has not demonstrated any prejudice for deposition of these treating physicians as hybrid/fact witnesses with a later deposition deadline. Therefore, in accordance with the terms of the scheduling order, the Court believes there is good cause to allow the defendant to depose the plaintiff's witnesses, notwithstanding the fact that the plaintiff classified them as "experts," until the deadline for all discovery as specified in the scheduling order. (Id.).
Additionally, the parties have raised, in their pleadings, the issue of the proper compensation for these witnesses. The defendant has argued, under the theory that the witnesses are fact rather than expert witnesses, that the defendant need not compensate those witnesses who are also treating physicians in accordance with the rates specified in Local Rule 104.11(b), but rather that they are only entitled to the more limited compensation under 28 U.S.C. § 1821. (Papers Nos. 10, 12).
There is a split among the district courts that have addressed this issue as to whether treating physicians testifying about their opinions based on facts learned during treatment should be compensated under 28 U.S.C.A. § 1821, or under the more generous "reasonable fee" standard of FED.R.CIV.P. 26(b)(4)(C). See Demar v. United States, 199 F.R.D. 617, 618 (N.D.Ill. 2001) and cases cited therein. However, the Fourth Circuit does not appear to have spoken on the issue. Thus, the authority cited by the defendant on this point is persuasive, not binding.
Section 1821(b) provides:
A witness shall be paid an attendance fee of $40 per day for each day's attendance. A witness shall also be paid the attendance fee for the time necessarily occupied in going to and returning from the place of attendance at the beginning and end of such attendance or at any time during such attendance.28 U.S.C.A. § 1821. Other subsections of Section 1821 specify the travel and subsistence expenses that a witness is entitled to recover. § 1821(c)(1)-(3) and (d)(1)-(3).
The rule provides, in relevant part: "Unless manifest injustice would result, (i) the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under this subdivision. . . ." FED.R.CIV.P. 26(b)(4)(C).
As acknowledged in Demar, where there is no controlling case on point, "the issue, essentially, boils down to policy." 199 F.R.D. at 618. Here, the Rules Committee of this Court considered the interplay of 28 U.S.C. § 1821 and FED.R.CIV.P. 26 and local custom and practice and established in Local Rule 104.11 the policy of the Court. Local rules govern pending proceedings as the prescribing court may order. 28 U.S.C.A. § 2071(b). Moreover, as indicated by FED.R.CIV.P. 83(a)(1), the district court's local rules reflect a considered decision by a majority of its district judges and are thus binding on both the parties and the promulgating court.
See Maritrans Operating Partners Ltd. P'ship v. M/V Balsa 37, 64 F.3d 150, 154-55 (4th Cir. 1995) (finding that where a federal and local rule are not inconsistent, the clear language of the local rule dictates the decision, and the Court of Appeals leaves any modification of the local rule to the district which promulgated it). See also Jackson v. Beard, 828 F.2d 1077, 1078-80 (4th Cir. 1987) (local rules have the force and effect of law and are binding upon the parties and the court which promulgated them); United States Fid. Guar. Co. v. Lawrenson, 334 F.2d 464, 467 (4th Cir. 1964) (articulating the general principle that the district court is the best judge of its own rules).
Local Rule 104.11(a), in relevant part, provides that any reasonable fee charged by an expert for time spent in a discovery deposition and associated travel shall be paid by the party taking the deposition. Local Rule 104.11(b) specifies that a treating physician may charge his or her customary hourly fee or $200 per hour, whichever is lower, for any work performed in connection with any discovery matter.
The Court notes that Local Rule 104.11(a) also specifies that "[t]he fee charged by the expert for time spent preparing for the deposition shall be paid by the party designating the expert." (emphasis added).
When subpart (a) of Local Rule 104.11 is read in conjunction with FED.R.CIV.P. 26(b)(4)(C), which refers to any expert, not just retained experts, it is apparent that the local rule may be construed to refer to both expert and hybrid witnesses.
Additionally, Local Rule 104.11(b), on its face, permits treating physicians, aside from their classification as expert, hybrid or fact witnesses, to charge compensation fees exceeding those found in 28 U.S.C.A. § 1821.
Thus, the Court finds that Local Rule 104.11(a) requires the party taking the depositions, in this case the defendant, to compensate both expert and hybrid witnesses for time spent in deposition and associated travel. Additionally, those witnesses who are treating physicians must be compensated in accordance with the amounts specified in Local Rule 104.11(b).
III. Conclusion
It is therefore ORDERED that (1) plaintiff's motion for a protective order is DENIED; (2) the defendant's motion to compel depositions is GRANTED; (3) the defendant's motion to compel responses to interrogatories and requests for production is DENIED; (4) plaintiff may depose the witnesses at issue in this motion; and (5) in accordance with Local Rule 104.11, the defendant, as the party deposing the plaintiff's witnesses, must compensate those witnesses who are treating physicians in accordance with the rates specified in subpart (b) of that rule for time spent in deposition and associated travel.