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A treating physician is by definition an expert — whether formally designated an expert witness or not — and is therefore owed a “reasonable” fee rather than the $40 statutory stipend when providing technical deposition testimony, two Northern District of New York judges have found. Senior U.S. District Judge Thomas J. McAvoy last week endorsed the recommendation of Magistrate Judge Randolph F. Treece on an issue that has divided trial judges nationwide. The issue centers on the nature of a witness who is in fact an expert and provides deposition testimony involving technical expertise but has not been retained as an expert witness. The trial court’s decision in Lamere v. New York State Office for the Aging, 03-CV-0356, addresses not only how much physician witnesses are paid, but how their deposition testimony is to be used when the doctor has not been formally designated an expert witness. Those issues have arisen in scores of trial courts, but only one circuit court, in Washington, D.C., has ruled on the matter. There remains no controlling authority in the 2nd U.S. Circuit Court of Appeals. Lamere is a pending gender discrimination action. During discovery, the plaintiff identified her psychiatrist, Dr. Mary Panzetta, as a treating physician. She was not specifically retained or identified as an expert witness. Panzetta was subpoenaed by the defense to testify at a deposition, and did so. She was paid the $40 statutory fee provided under 28 U.S.C. �1821. However, when the defense sought to continue the deposition, Panzetta said she would not cooperate unless she was paid a “reasonable” expert fee. The psychiatrist’s stance brought to the fore in the Northern District an issue that has confronted scores of trial courts across the country. Roughly half of those to have considered the issue have said non-designated experts are entitled to reasonable compensation, and about half have said they are not. In a lengthy examination of the issue, Treece last month rejected the only circuit court to have yet addressed the question, the D.C. Circuit in Irons v. Karceski, 316 U.S. App. D.C. 1, 74 F.3d 1262 (1996). He said Panzetta is entitled to a reasonable hourly fee of $185 for her deposition testimony and that sum must be paid by the parties seeking discovery, in this case the defendants. “Doctors bring extraordinary insight into facts which can only be gleaned through their scientific or specialized knowledge,” Treece wrote, commenting on the “true dichotomy” between a physician and lay witness. Thus, “doctors can only be seen as experts, unless they are witnesses observing an occurrence much like … non-doctors would (e.g., a car accident or an incident on the street).” The magistrate judge said that since a treating doctor’s opinion is rooted in specialized knowledge, as opposed to the reasoning process of everyday life, he or she must be viewed as an expert. McAvoy agreed. He said in a footnote that the plaintiff’s failure to designate Panzetta as an expert witness does not determine whether her testimony should be considered that of an expert. “[I]t is the substance of the testimony that determines whether it qualifies as expert testimony,” McAvoy wrote. “Of course, the failure of either party to designate Panzetta as an expert may limit their ability to use her testimony at trial.” Nationwide, trial courts have dealt with the same issue without coming to any consensus. Some courts have concluded that treating physicians should not be categorized as experts unless they have been retained for that purpose. Those courts, Treece said, are leery of transforming a fact witness into an expert witness “merely by designation.” He expressed concern that such an action “would cloak a discovery source in a protective veil’ that was not contemplated by the discovery rules (see Matias v. U.S., 1999 WL 1022132). “Under this reasoning, if a treating physician is conferred the status of an ‘expert,’ they would be creating a problematic slippery slope by entering into the business of bestowing special treatment on a witness,” Treece wrote. Neither Treece nor McAvoy subscribed to that view. McAvoy wrote that “there can be no blanket rule that certain persons, such as physicians, giving testimony are automatically entitled to a reasonable fee merely because of their title, knowledge, or a degree they may possess.” Rather, he stressed that the “substance of the testimony” determines whether a witness is entitled to a reasonable rather than statutory fee. SPECIALIZED KNOWLEDGE “If the treating physician’s testimony is limited to pure observation, an explanation of treatment notes, etc., then the physician may properly be characterized as a fact witness and receive nothing more than the statutory witness fee,” McAvoy said. “If, however, testimony is elicited that reasonably may be considered to be opinions based on specialized skill and knowledge … then the physician may properly be characterized as an expert witness and is entitled to a reasonable fee for time spent in responding to discovery.” Marc H. Goldberg of Honen & Wood in Albany, N.Y., appeared for the plaintiff. The defendants were represented by Assistant Attorney General Kelly L. Munkwitz and Meredith H. Savitt of Albany.

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