United States District Court, S.D. West Virginia, Charleston Division
IN RE AMERICAN MEDICAL SYSTEMS, INC. PELVIC REPAIR SYSTEMS PRODUCT LIABILITY LITIGATION
AMS, Inc. 2:12-cv-09084 THIS ORDER RELATES ONLY TO CIVIL ACTION: Maria Ordonez, et al.
MEMORANDUM OPINION AND ORDER
A. EIFERT United States Magistrate Judge.
is the motion of American Medical Systems, Inc.
(“AMS”) to compel the deposition of Dr. Shlomo
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 motion, by mail, on March 3,
2017. (Id. at 2). Hence, the time allotted for
filing a response in opposition to the motion has expired,
and no response has been filed. Accordingly, AMS's motion
to compel the deposition of Dr. Raz is
GRANTED. For the reasons set forth below,
the undersigned further ORDERS AMS to pay
Dr. Raz an hourly fee of $500 for the time he spends at
Maria and Rudolfo Ordonez, have filed suit against AMS,
claiming injuries related to transvaginal mesh manufactured
and distributed by AMS. Dr. Shlomo Raz is one of Maria
Ordonez's treating physicians. Dr. Raz allegedly
performed surgery on Ms. Ordonez to remove the transvaginal
mesh at issue in this case. Consequently, AMS issued a notice
of deposition to obtain the testimony of Dr. Raz and served
him with a subpoena to appear at a designated place and
time. 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, 500 per hour for his time. When AMS refused to
pay that amount, arguing that it was excessive, Dr. Raz
involved his counsel, Ms. Jane Lennon. Ms. Lennon
communicated with AMS, reiterating Dr. Raz's insistence
that he be paid an hourly deposition fee of $3, 500. Ms.
Lennon argued that Dr. Raz was entitled to a
“reasonable and customary” deposition fee under
California's Code of Civil Procedure, and Dr. Raz
customarily received the $3, 500 hourly fee he demanded from
AMS. When the dispute could not be resolved, AMS filed the
Civ. P. 45(g) allows a court in the district where compliance
with a subpoena is required to hold in contempt an
individual, who having been served, fails without adequate
excuse to obey the subpoena or an order related to it. If a
motion under Rule 45 has been transferred from the court
where compliance is required to the court that issued the
subpoena, then the issuing court may enforce the subpoena.
Fed.R.Civ.P. 45(f). In this case, AMS originated its motion
to compel in this court-the issuing court-rather than in the
court where compliance with the subpoena is required. While
such a deviation from the Rule would generally result in a
denial of the motion, it does not in this circumstance,
because the Ordonezes' case is part of a multidistrict
litigation (“MDL”). See 28 U.S.C.A.
§ 1407 (stating that “a judge or judges to whom
such [multidistrict] actions are assigned by the judicial
panel on multidistrict litigation … may exercise the
powers of a district judge in any district for the purpose of
conducting pretrial depositions in such coordinated or
consolidated pretrial proceedings.”); see, also,
U.S. ex rel. Pogue v. Diabetes Treatment Centers of Am.,
Inc., 238 F.Supp.2d 270, 274 (D.D.C. 2002) (collecting
cases in which courts agree that an MDL judge is empowered by
statute to enforce subpoenas and adjudicate MDL deposition
disputes in other districts); In re Accutane Prod. Liab.
Litig., No. 804MD2523T30TBM, 2006 WL 1000311, at *2 n. 3
(M.D. Fla. Apr. 14, 2006) (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. 2007) (holding that “the rationale
underlying the MDL statute of ‘just and efficient'
resolution of pretrial proceedings requires the conclusion
that Section 1407(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 “may compel
production by an extra-district nonparty; enforce, modify, or
quash a subpoena directed to an extra-district nonparty; and
hold an extra-district nonparty deponent in contempt,
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
Dr. Raz's Entitlement to a “Reasonable”
points out, the law is not well established as to whether Dr.
Raz is entitled to a deposition fee in excess of the
statutorily mandated $40-per-day fee. Some federal courts
have addressed the issue and concluded that treating
physicians are entitled to no more 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, 2016 WL 3094031, at *5 (W.D. Ky. June 1,
2016) (concluding that “the deposition of Dr. Lewis, a
non-retained expert and treating physician, would be
completed in one day, so a one-day fee of $40 was
sufficient.”); Korhonen v. Sentinel Ins. Ltd.,
No. 2:13-CV-00565-RCJ, 2015 WL 2185365, at *6 (D. Nev. May 8,
2015) (holding that “Plaintiffs' treating
physicians are percipient witnesses and are not entitled to
expert fees for their depositions.”); McDermott v.
FedEx Ground Sys., Inc., 247 F.R.D. 58 (D. Mass. 2007)
(“[P]laintiff's treating physician who was not
specifically designated an expert witness … was not
entitled to compensation for attending deposition noticed by
defendants as an expert witness under ‘reasonable
fees' calculation of expert witness rule, but was only
entitled to compensation under the statute governing
compensation for deposing ordinary ‘fact'
witnesses”); Zanowic v. Ashcroft, 2002 WL
826878 (S.D.N.Y. Apr.30, 2002) (finding that treating
physician was not entitled to fees other than those
prescribed by 28 U.S.C. § 1821). In contrast, some
courts have held that the expert nature of a treating
physician's testimony entitles the physician to a
deposition fee in excess of that paid to a fact witness.
See Maxwell v. Becker, No. 12-CV-00864S F, 2015 WL
4872137, at *5 (W.D.N.Y. Aug. 13, 2015), report and
recommendation adopted, No. 12-CV-864S, 2015 WL 5793403
(W.D.N.Y. Sept. 30, 2015) (“In this district, however,
courts have recognized that treating physicians, even when
not testifying as a specially retained expert, are entitled
to reasonable compensation rather than the statutory $ 40 per
day fee.”); Johnson v. Kraft Foods North
America, No. 05-2093-JWL-DJW, 2007 WL 734956, at *3 (D.
Kan. March 7, 2007) (holding that “the testimony of a
treating physician is entitled to his or her
‘reasonable fee' because such physician's
testimony will necessarily involve scientific knowledge and
observations that do not inform the testimony of a simple
‘fact' or ‘occurrence' witness.”)
the undersigned need not determine whether Dr. Raz is
entitled to more 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 amount of the
fee demanded by Dr. Raz. According to AMS, it has scheduled
approximately 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 $500 per hour. In
the other two case, AMS paid $650 per hour.
determining a reasonable fee for expert witness testimony,
federal courts have typically considered a number of factors,
(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 comparably
respected available experts, (4) the nature, quality and
complexity 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
matters, and (8) any other factor likely to be of assistance
to the court in balancing the interests implicated by Rule
First S. Bank v. Fifth Third Bank, N.A., No. CIV.A.
7:10-2097-MGL, 2014 WL 3868000, at *4 (D.S.C. Aug. 6, 2014),
aff'd sub nom. First S. Bank v. Fifth Third Bank
NA, 631 F.App'x 121 (4th Cir. 2015) (quoting
Adams v. Memorial Sloan Kettering Cancer Center,
2002 WL 1401979, at *1 (S.D.N.Y. June 28, 2002)). “The
party seeking reimbursement of [its] expert witness fees has
the burden of demonstrating 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. 2012). “A guiding
principle is that the expert's fee should not be so high
as to impair a party's access to necessary discovery or
result in a windfall to the expert.” Maxwell v.
Stryker Corp., No. 11-CV-01524-REB-KMT, 2012 WL 2319092,
at *2 (D. Colo. June 19, 2012). Furthermore, the court should
not overlook that the deposition demands 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 Midwest, No.
2:11-CV-01827-RCJ, 2013 WL 1261757, at *2 (D. Nev. Mar. 26,
2013) (“Arguably, the reasonable hourly rate may be
different if the physician is merely deposed about his
examination findings, diagnosis and treatment rendered during
the ordinary course of providing patient care.”)
case, Dr. Raz has provided no information relative to the
factors listed above and has made no effort to justify his
$3, 500 per hour fee. While he claims that other individuals
have been willing to pay him $3, 500 per hour, that fact,
alone, does not establish the reasonableness of his
deposition rate. On the other hand, AMS has provided evidence
that the customary hourly fee being charged in this MDL is
$500. Moreover, a review of the relevant case law indicates
that $500 per hour is within the range of reasonable payment
for a treating physician's testimony. See Korabik v.
Arcelormittal Plate LLC, 310 F.R.D. 205, 208 (E.D.N.Y.
2015) (finding an hourly deposition fee of $400 to be
consistent with compensation made to other expert orthopedic
surgeons); Roca Labs, Inc. v. Consumer Opinion
Corp., No. 8:14-CV-2096-T-33EAJ, 2015 WL 12844308, at *2
(M.D. Fla. July 23, 2015) (hourly fee of $500 was reasonable
for internal medicine specialist providing expert witness
testimony); Patterson v. Avis Rent A Car Sys., Inc.,
48 F.Supp.3d 534, 534-35 (S.D.N.Y. 2014) (finding that $650
hourly fee was appropriate for treating physician designated
as an expert witness); Clossin v. Norfolk S. Ry.
Co., No. CIV.A. 3:13-01, 2014 WL 3339588, at *2 (W.D.
Pa. July 8, 2014) (holding that physician's requested fee
of $4000 for first hour of deposition was unreasonable and
finding that $1, 500 for first three hours, or any part
therof, was reasonable); Duke v. Performance Food Grp.,
Inc., No. 1:11CV220-MPM-DAS, 2014 WL 370442, at *7 (N.D.
Miss. Feb. 3, 2014) (finding that a $300.00 per hour fee
charged by treating physician was reasonable); Burgess v.
Fischer,283 F.R.D. 372, 373 (S.D. Ohio 2012) (finding
expert doctor's flat fee of $2, 000 for deposition
unreasonable and setting reasonable deposition fee at $360
per hour, which was the doctor's regular billing rate);
Maxwell v. Stryker Corp., 2012 WL 2319092, at *3
(finding a fee not to exceed $750 per hour was reasonable for
an orthopedic ...