Ordonez et al v. American Medical Systems, Inc. et al, No. 2:2012cv09084 - Document 20 (S.D.W. Va. 2017)
Court Description: MEMORANDUM OPINION and ORDER granting 18 MOTION by American Medical Systems, Inc. to Compel Deposition of Treating Physician Dr. Shlomo Raz and Request to Set Reasonable Deposition Fee; AMS is permitted to depose Dr. Raz in his role as plaintiff� 39;s treating physician and should pay him a reasonable deposition fee. Signed by Magistrate Judge Cheryl A. Eifert on 3/21/2017. (cc: counsel of record; counsel for Dr. Shlomo Raz, Ms. Jane Lennon, Law Offices of Jane Lennon, 1015 Sunnyhills Road, Oakland, CA 94610) (kp)
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Ordonez et al v. American Medical Systems, Inc. et al Doc. 20 IN TH E U N ITED STATES D ISTRICT COU RT FOR TH E SOU TH ERN D ISTRICT OF W EST VIRGIN IA CH ARLESTON D IVISION IN RE: AMERICAN MEDICAL SYSTEMS, INC. PELVIC REPAIR SYSTEMS PRODUCT LIABILITY LITIGATION MDL No. 2325 -------------------------------------------------------------THIS ORDER RELATES ONLY TO CIVIL ACTION: Maria Ord o n e z, e t al. v. AMS, In c. 2 :12 -cv-0 9 0 8 4 MEMORAN D U M OPIN ION an d ORD ER Pending is the m otion of Am erican Medical System s, Inc. (“AMS”) to com pel the deposition of Dr. Shlom o Raz and to set a reasonable deposition fee. (ECF No. 18). According to the certificate of service, AMS served counsel for Dr. Raz with a copy of the m otion, by m ail, on March 3, 20 17. (Id. at 2). Hence, the tim e allotted for filing a response in opposition to the m otion has expired, and no response has been filed. Accordingly, AMS’s m otion to com pel the deposition of Dr. Raz is GRAN TED . For the reasons set forth below, the undersigned further ORD ERS AMS to pay Dr. Raz an hourly fee of $ 50 0 for the tim e he spends at deposition. I. Re le van t Facts Plaintiffs, Maria and Rudolfo Ordonez, have filed suit against AMS, claim ing injuries related to transvaginal m esh m anufactured and distributed by AMS. Dr. Shlom o Raz is one of Maria Ordonez’s treating physicians. Dr. Raz allegedly perform ed surgery on Ms. Ordonez to rem ove the transvaginal m esh at issue in this case. Consequently, AMS issued a notice of deposition to obtain the testim ony of Dr. Raz and served him 1 Dockets.Justia.com with a subpoena to appear at a designated place and tim e.1 Prior to the scheduled date of the deposition, Dr. Raz’s office contacted AMS and advised that Dr. Raz would not appear for the deposition unless he was paid $ 3,50 0 per hour for his tim e. When AMS refused to pay that am ount, arguing that it was excessive, Dr. Raz involved his counsel, Ms. J ane Lennon. Ms. Lennon com m unicated with AMS, reiterating Dr. Raz’s insistence that he be paid an hourly deposition fee of $ 3,50 0 . Ms. Lennon argued that Dr. Raz was entitled to a “reasonable and custom ary” deposition fee under California’s Code of Civil Procedure, and Dr. Raz custom arily received the $ 3,50 0 hourly fee he dem anded from AMS. When the dispute could not be resolved, AMS filed the instant m otion. II. Ju ris d ictio n Fed. R. Civ. P. 45(g) allows a court in the district where com pliance with a subpoena is required to hold in contem pt an individual, who having been served, fails without adequate excuse to obey the subpoena or an order related to it. If a m otion under Rule 45 has been transferred from the court where com pliance is required to the court that issued the subpoena, then the issuing court m ay enforce the subpoena. Fed. R. Civ. P. 45(f). In this case, AMS originated its m otion to com pel in this court—the issuing court—rather than in the court where com pliance with the subpoena is required. While such a deviation from the Rule would generally result in a denial of the m otion, it does not in this circum stance, because the Ordonezes’ case is part of a m ultidistrict litigation (“MDL”). See 28 U.S.C.A. § 140 7 (stating that “a judge or judges to whom such [m ultidistrict] actions are assigned by the judicial panel on m ultidistrict litigation …m ay exercise the powers of a district judge in any district for the purpose of conducting 1 The copy of the subpoena supplied to the Court does not verify service upon Dr. Raz. However, Dr. Raz has not disputed AMS’s representation that he was served with the subpoena. 2 pretrial depositions in such coordinated or consolidated pretrial proceedings.”); see, also, U.S. ex rel. Pogue v. Diabetes Treatm ent Centers of Am ., Inc., 238 F. Supp. 2d 270 , 274 (D.D.C. 20 0 2) (collecting cases in which courts agree that an MDL judge is em powered by statute to enforce subpoenas and adjudicate MDL deposition disputes in other districts); In re Accutane Prod. Liab. Litig., No. 80 4MD2523T30 TBM, 20 0 6 WL 10 0 0 311, at *2 n. 3 (M.D. Fla. Apr. 14, 20 0 6) (noting that the “statutory grant of power to a MDL judge to act as judge of any district for pretrial depositions” necessarily extends to the power to enforce a subpoena duces tecum issued by another district court); In re Neurontin Marketing, Sales Practices, and Product Liability Litigation, 245 F.R.D. 55, 58 (D. Mass. 20 0 7) (holding that “the rationale underlying the MDL statute of ‘just and efficient’ resolution of pretrial proceedings requires the conclusion that Section 140 7(b)'s grant of authority applies to both deposition subpoenas and documents-only subpoenas.”) (quoting U.S. ex rel. Pogue, 444 F.3d at 469 n.4). Thus, the court presiding over a MDL “m ay com pel production by an extra-district nonparty; enforce, m odify, or quash a subpoena directed to an extra-district nonparty; and hold an extra-district nonparty deponent in contem pt, notwithstanding the nonparty's physical situs in a foreign district where discovery is being conducted.” Id. (quoting U.S. ex rel. Pogue, 444 F.3d at 468-69). III. D r. Raz’s En title m e n t to a “Re as o n able ” D e p o s itio n Fe e As AMS points out, the law is not well established as to whether Dr. Raz is entitled to a deposition fee in excess of the statutorily m andated $ 40 -per-day fee. Som e federal courts have addressed the issue and concluded that treating physicians are entitled to no m ore than the daily fee paid to any non-retained witness testifying in a federal case. See Pogue v. Nw . Mut. Life Ins. Co., No. 3:14-CV-598-CRS-CHL, 20 16 WL 30 940 31, at 3 *5 (W.D. Ky. J une 1, 20 16) (concluding that “the deposition of Dr. Lewis, a non-retained expert and treating physician, would be com pleted in one day, so a one-day fee of $ 40 was sufficient.”); Korhonen v. Sentinel Ins. Ltd., No. 2:13-CV-0 0 565-RCJ , 20 15 WL 2185365, at *6 (D. Nev. May 8, 20 15) (holding that “Plaintiffs' treating physicians are percipient witnesses and are not entitled to expert fees for their depositions.”); McDerm ott v. FedEx Ground Sy s., Inc., 247 F.R.D. 58 (D. Mass. 20 0 7) (“[P]laintiff's treating physician who was not specifically designated an expert witness … was not entitled to com pensation for attending deposition noticed by defendants as an expert witness under ‘reasonable fees’ calculation of expert witness rule, but was only entitled to com pensation under the statute governing com pensation for deposing ordinary ‘fact’ witnesses”); Zanow ic v. Ashcroft, 20 0 2 WL 826878 (S.D.N.Y. Apr.30 , 20 0 2) (finding that treating physician was not entitled to fees other than those prescribed by 28 U.S.C. § 1821). In contrast, som e courts have held that the expert nature of a treating physician’s testim ony entitles the physician to a deposition fee in excess of that paid to a fact witness. See Maxw ell v. Becker, No. 12-CV-0 0 864S F, 20 15 WL 4872137, at *5 (W.D.N.Y. Aug. 13, 20 15), report and recom m endation adopted, No. 12-CV-864S, 20 15 WL 579340 3 (W.D.N.Y. Sept. 30 , 20 15) (“In this district, however, courts have recognized that treating physicians, even when not testifying as a specially retained expert, are entitled to reasonable com pensation rather than the statutory $ 40 per day fee.”); Johnson v. Kraft Foods North Am erica, No. 0 5– 20 93– J WL– DJ W, 20 0 7 WL 734956, at *3 (D. Kan. March 7, 20 0 7) (holding that “the testim ony of a treating physician is entitled to his or her ‘reasonable fee’ because such physician's testim ony will necessarily involve scientific knowledge and observations that do not inform the testim ony of a sim ple ‘fact’ or ‘occurrence’ witness.”) (citations om itted). 4 Here, the undersigned need not determ ine whether Dr. Raz is entitled to m ore than the $ 40 -per-day fee, because AMS is not opposed to paying him a “reasonable” hourly rate for his deposition. Rather, AMS objects to the am ount of the fee dem anded by Dr. Raz. According to AMS, it has scheduled approxim ately forty depositions of treating physicians in this wave of the MDL and, in all but two cases, the treating physician has agreed to a deposition fee of $ 50 0 per hour. In the other two case, AMS paid $ 650 per hour. IV. Re as o n able Fe e When determ ining a reasonable fee for expert witness testim ony, federal courts have typically considered a num ber of factors, including: (1) the witness's area of expertise, (2) the education and training that is required to provide the expert insight that is sought, (3) the prevailing rates for other com parably respected available experts, (4) the nature, quality and com plexity of the discovery responses provided, (5) the cost of living in the particular geographic area, (6) the fee being charged by the expert to the party who retained him , (7) fees traditionally charged by the expert on related m atters, and (8) any other factor likely to be of assistance to the court in balancing the interests im plicated by Rule 26. First S. Bank v. Fifth Third Bank, N .A., No. CIV.A. 7:10 -20 97-MGL, 20 14 WL 38680 0 0 , at *4 (D.S.C. Aug. 6, 20 14), aff'd sub nom . First S. Bank v. Fifth Third Bank N A, 631 F. App'x 121 (4th Cir. 20 15) (quoting Adam s v. Mem orial Sloan Kettering Cancer Center, 20 0 2 WL 140 1979, at *1 (S.D.N.Y. J une 28, 20 0 2)). “The party seeking reim bursem ent of [its] expert witness fees has the burden of dem onstrating to the court that the expert's rate and fee are reasonable.” Se-Kure Controls, Inc. v. Vanguard Prod. Grp., Inc., 873 F. Supp. 2d 939, 955 (N.D. Ill. 20 12). “A guiding principle is that the expert's fee should not be so high as to im pair a party's access to necessary discovery or result in a windfall to the expert.” Maxw ell v. Stry ker Corp., No. 11-CV-0 1524-REB-KMT, 20 12 WL 5 23190 92, at *2 (D. Colo. J une 19, 20 12). Furtherm ore, the court should not overlook that the deposition dem ands placed on a retained expert witness differ from those experienced by a treating physician testifying about the care of his patient. See Axelson v. Hartford Ins. Co. of the Midw est, No. 2:11-CV-0 1827-RCJ , 20 13 WL 1261757, at *2 (D. Nev. Mar. 26, 20 13) (“Arguably, the reasonable hourly rate m ay be different if the physician is m erely deposed about his exam ination findings, diagnosis and treatm ent rendered during the ordinary course of providing patient care.”) In this case, Dr. Raz has provided no inform ation relative to the factors listed above and has m ade no effort to justify his $ 3,50 0 per hour fee. While he claim s that other individuals have been willing to pay him $ 3,50 0 per hour, that fact, alone, does not establish the reasonableness of his deposition rate. On the other hand, AMS has provided evidence that the custom ary hourly fee being charged in this MDL is $ 50 0 . Moreover, a review of the relevant case law indicates that $ 50 0 per hour is within the range of reasonable paym ent for a treating physician’s testim ony. See Korabik v. Arcelorm ittal Plate LLC, 310 F.R.D. 20 5, 20 8 (E.D.N.Y. 20 15) (finding an hourly deposition fee of $ 40 0 to be consistent with com pensation m ade to other expert orthopedic surgeons); Roca Labs, Inc. v. Consum er Opinion Corp., No. 8:14-CV-20 96T-33EAJ , 20 15 WL 1284430 8, at *2 (M.D. Fla. J uly 23, 20 15) (hourly fee of $ 50 0 was reasonable for internal m edicine specialist providing expert witness testim ony); Patterson v. Avis Rent A Car Sy s., Inc., 48 F. Supp. 3d 534, 534– 35 (S.D.N.Y. 20 14) (finding that $ 650 hourly fee was appropriate for treating physician designated as an expert witness); Clossin v. Norfolk S. Ry . Co., No. CIV.A. 3:13-0 1, 20 14 WL 3339588, at *2 (W.D. Pa. J uly 8, 20 14) (holding that physician’s requested fee of $ 40 0 0 for first hour of deposition was unreasonable and finding that $ 1,50 0 for first three hours, or any part 6 therof, was reasonable); Duke v. Perform ance Food Grp., Inc., No. 1:11CV220 -MPMDAS, 20 14 WL 370 442, at *7 (N.D. Miss. Feb. 3, 20 14) (finding that a $ 30 0 .0 0 per hour fee charged by treating physician was reasonable); Burgess v. Fischer, 283 F.R.D. 372, 373 (S.D. Ohio 20 12) (finding expert doctor's flat fee of $ 2,0 0 0 for deposition unreasonable and setting reasonable deposition fee at $ 360 per hour, which was the doctor's regular billing rate); Maxw ell v. Stry ker Corp., 20 12 WL 23190 92, at *3 (finding a fee not to exceed $ 750 per hour was reasonable for an orthopedic surgeon’s testim ony); Cartrette v. T & J Transp., Inc., No. 3:10 -CV-277-J -25MCR, 20 11 WL 899523, at *2 (M.D. Fla. Mar. 15, 20 11) (Court rejected treating physicians’ request for a deposition fee of $ 150 0 per hour, stating that the ‘“obligation born by all citizens to give relevant testim ony’ dictates they do so at a rate less than they m ay charge for expert testim ony in cases where they have no treating relationship. Accordingly, the Court finds a fee of $ 40 0 per hour to be reasonable.”). V. Co n clu s io n Therefore, based on AMS’s representation that Dr. Raz has not been identified or specially retained as an expert witness; the representation that a m ajority of the other treating physicians in the MDL have accepted $ 50 0 per hour as a deposition fee; the relevant case law; and the lack of any inform ation to the contrary offered by Dr. Raz, the undersigned concludes that AMS should be perm itted to depose Dr. Raz in his role as plaintiff’s treating physician and should pay him a reasonable deposition fee of $ 50 0 per hour. Thus, AMS’s m otion is GRAN TED . It is so ORD ERED . The Clerk is directed to provide a copy of this Order to counsel of record and to counsel for Dr. Shlom o Raz, Ms. J ane Lennon, Law Offices of J ane Lennon, 10 15 7 Sunnyhills Road, Oakland, CA 94610 . EN TERED : March 21, 20 17 8
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