Summary
Treating physician entitled only to $40 per day for his testimony.
Summary of this case from Wirtz v. Kansas Farm Bureau Services, Inc.Opinion
No. 97 Civ. 5292 (JGK) (HBP)
April 17, 2002
MEMORANDUM OPINION AND ORDER
I. Introduction
The issue currently before me is whether a treating physician is entitled to a witness fee beyond the $40 plus mileage permitted by 18 U.S.C. § 1821. For the reasons set forth below, I conclude that a treating physician is not entitled to such a fee.
II. Facts
This is an employment discrimination action. Plaintiff alleges that he has been employed as a Deputy United States Marshal in the Southern District of New York since June 1988 (Complaint ¶ 6). Plaintiff claims that during his tenure, he "has witnessed and openly voiced his Opposition to the hostile work environment to which his African-American (Black) colleagues were subjected because of their race" (Complaint ¶ 8).
As a consequence of his criticism of the unfair treatment of African American Deputy Marshals, plaintiff claims that he was "subjected to harassment and disparate treatment, [that he] was, inter alia, denied service training that he had requested; referred to as a `white rat' by his colleagues; and subjected to other forms of harassment" (Complaint ¶ 12). Among other things, plaintiff alleges that he was subjected to physical and verbal abuse, that his locker was vandalized, that he was given undesirable assignments, that his performance reviews were unfairly downgraded and that his supervisors repeatedly failed to investigate his charges of retaliatory and disparate treatment or to take any corrective action.
As a result of these and other retaliatory acts, plaintiff alleges that he suffered "extreme emotional distress, requiring him to seek treatment and to request a leave of absence from the [Marshals Service]" (Complaint ¶ 48).
Among the witnesses plaintiff intends to call at trial is Dr. James Ferretti, who is claimed to be plaintiff's treating psychiatrist. On March 7, 2002, I concluded that, based on the record before me at that time, Dr. Ferretti was a treating physician and, as such, is entitled to testify to facts learned and opinions formed in the course of his treatment of plaintiff, notwithstanding the fact that plaintiff had not timely made the disclosure required by Rule 26(a)(2) with respect to Dr. Ferretti.
My ruling was without prejudice to a renewed application to preclude Dr. Ferretti's testimony should subsequently disclosed evidence establish that Dr. Ferretti is not a bona fide treating physician.
On March 28, 2002, I conducted a status conference in this matter. In an effort to try to avoid future motion practice, I advised counsel at that time that I found the opinion in Colemen v. Dydula, 190 F.R.D. 320 (W.D.N.Y. 1999) to be persuasive and that I tentatively believed that Dr. Ferretti was entitled to a fee beyond the statutory per diem fee, notwithstanding the fact that he was not an expert specially retained for trial. However, because I wanted to give counsel an opportunity to address the issue, I expressly noted that my ruling was without prejudice to a renewed application by either side and invited counsel to submit letter briefs addressing the issue. Counsel have now submitted letter briefs and I re-visit the issue de novo.
III. Analysis
Courts within this Circuit have reached conflicting results on the issue of whether treating physicians are entitled to a fee beyond the statutory witness fee. Compare Coleman v. Dydula, supra, 190 F.R.D. 320 (concluding that treating physicians are entitled to a reasonable fee beyond the statutory per diem for their testimony) with Matias v. United States, 97 Civ. 8957 (NRB), 1999 WL 1022132 (S.D.N.Y. Nov. 5, 1999) (reaching the opposite conclusion). Decisions from other Circuits reflect the same lack of a consensus. See Demar v. United States, 199 F.R.D. 617, 618 (N.D. Ill. 2001) ("[T]he district courts that have addressed this issue are, essentially, split.").
Physicians are probably called to testify in court more than any other private sector employees. Almost every accident victim seen in an emergency room is a potential plaintiff. And even where a patient is not seen on an emergency basis, whenever the patient's condition is due, or arguably due, to the conduct of a third-party, the treating physician is a potential witness. In this respect, physicians are uniquely situated.
In view of the frequency with which physicians are called to testify, compelling arguments can be made that they should be permitted to require a fee beyond the $40 per day fee, plus mileage, authorized by 28 U.S.C. § 1841. However, upon reflection, I believe that the authority to make such a change most appropriately lies with the legislative branch. Responding to a subpoena is an onerous task for most witnesses; for the judiciary to start deciding who is entitled to special treatment and singling out one profession over another for special treatment would indeed be entering upon a "slippery slope." Demar v. United States, supra, 199 F.R.D. at 620. I also note that in the analogous area of subpoenas duces tecum Congress has determined when witnesses are entitled to special compensation for the fees inherent in assembling and copying responsive materials. See, e.g., 12 U.S.C. § 3415. The fact that Congress itself views the subject as being appropriately regulated by the legislative branch is a further consideration that weighs against creating judicial exceptions to the statutory limits on witnesses fees.
IV. Conclusion
Accordingly, I conclude that Dr. Ferretti is not entitled to compensation from defendants beyond that set forth in 28 U.S.C. § 1841.