Opinion
Case No. 00-1402.
April 3, 2002.
ORDER
This matter is now before the Court on several pending motions by Defendant. Each motion will be addressed in turn.
I. Motion to Compel Mental Examination
Defendant asks the Court to compel the Plaintiff, Teresa Bovey ("Bovey"), to submit to a mental examination by its retained expert. Bovey responds that as Defendant has already taken her deposition, as well as the depositions of her treating psychiatrists, psychologists, and counselors, the request is unwarranted.
Rule 35(a) of the Federal Rules of Civil Procedure provides in relevant part:
When the mental . . . condition . . . of a party . . . is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a suitably licensed or certified examiner. . . . The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.
Bovey argues that Defendant has not shown good cause for the exam, as she has not placed her mental health in controversy. However, with all due respect, this argument is without merit. Bovey's emotional damages are a major component of her damages claim. She has alleged that she "suffered from emotional and mental stress resulting in depression and anxiety caused by the ongoing sexual harassment, discrimination and intimidation" in her workplace. She has further identified five mental health care providers who provided counseling and treatment in this respect and indicated that she intends to call these witnesses at trial.
Where, as here, specific emotional distress damages are a large portion of a plaintiff's damages claim, and the plaintiff intends to introduce mental health evidence or testimony at trial, a defendant is not required to simply accept the plaintiff's evidence without any opportunity to introduce evidence in rebuttal. The Court therefore concludes that so long as Bovey intends to introduce psychiatric or other mental health evidence at trial, Defendant has shown good cause for and is entitled to the mental examination requested. Accordingly, the Court directs that Bovey submit to a mental examination by Dr. Robert E. Chapman within the next 21 days. Counsel shall confer and reach agreement as to the precise time, date, and place of the examination, which shall consist of the two psychological screening tests and psychiatric examination described in Defendant's motion.
Bovey has not objected to the qualifications of Dr. Chapman.
The psychiatric examination portion of the exam shall not exceed two hours in length.
II. Objections to February 25, 2002, Order of the Magistrate Judge
On February 25, 2002, Magistrate Judge Gorman entered an Order denying Defendant's Motion for a Protective Order regarding the payment of fees and costs to certain witnesses. In this Order, the Magistrate Judge found that treating healthcare providers not specifically identified in this action as expert witnesses were entitled to compensation for their deposition time in excess of the statutory fees and costs set forth in 28 U.S.C. § 1821. Defendant now appeals from this Order.
In support of its argument that the Magistrate Judge's Order was clearly erroneous, Defendant relies on "the single published opinion in the Seventh Circuit on this precise issue," Demar v. United States, 199 F.R.D. 617, 618 (N.D.Ill. 2001). However, while the Court has great respect for Magistrate Judge Keys, the Court is not bound by the opinion of another district court. As noted in Demar, the issue of whether a treating physician should be entitled to additional compensation beyond the statutory rate for fact witnesses has not been decided by the Seventh Circuit, nor to this Court's knowledge, by any other Circuit Court of Appeals. The district court cases addressing the issue are split. See Fisher v. Ford Motor Co., 178 F.R.D. 195, 197-98 (N.D.Ohio. 1998) (no entitlement to compensation under Rule 26(b)(4)(C)); Mangla v. University of Rochester, 168 F.R.D. 137, 139-40 (W.D.N.Y. 1996) (no compensation beyond statutory rate for treating physician not being deposed as a retained expert); Baker v. Taco Bell Corp., 163 F.R.D. 348, 350 (D.Colo. 1995) (limiting treating physicians to recovery of statutory fee); Harvey v. Shultz, 2000 WL 33170885, at *2 (D.Kan. Nov. 16, 2000) (treating physician allowed reasonable fee beyond statutory rate); Haslett v. Texas Industries, Inc., 1999 WL 354227, at *2 (N.D.Tex. May 20, 1999) (acknowledging that some courts compensate treating physicians at a reasonable rate for giving depositions); Coleman v. Dydula, 190 F.R.D. 320 (W.D.N.Y. 1999) (treating physicians entitled to reasonable fee for deposition testimony pursuant to Fed.R.Civ.P. 26(b)(4)(C)); Scheinholtz v. Bridgestone/Firestone, Inc., 187 F.R.D. 221, 222 (E.D.Pa. 1999) (approving reasonable fee for treating physician's deposition); Magee v. Paul Revere Life Ins. Co., 172 F.R.D. 627, 645-46 (E.D.N.Y. 1997) (finding $300 per hour reasonable compensation for treating psychiatrist's deposition); Hose v. Chicago and North Western Transp. Co., 154 F.R.D. 222, 225-27 (S.D.Iowa 1994) (finding $400 per hour reasonable fee for treating neurologist's deposition); U.S. Energy Corp. v. NUKEM, Inc., 163 F.R.D. 344, 346-47 (D.Colo. 1995).
After considering the competing opinions on both sides of this issue, the Court finds the line of cases allowing treating physicians to receive a reasonable fee in excess of the statutory rate to be more persuasive. As recognized in Harvey:
Physicians provide invaluable services to the public and should be remunerated for their time when they cannot deliver medical care. They often have substantial overhead costs that they incur whether they are treating a patient or testifying about one. Litigators and their clients typically obtain physician testimony by deposition rather than by imposing the additional burdens associated with attendance at trial. They also respect the need to compensate physician witnesses to the extent necessary to cover their overhead costs and to pay them a fee commensurate with their professional standing and special expertise.
2000 WL 33170885, at *2, citing Haslett, 1999 WL 354227, at *2. Moreover, Rule 26 clearly distinguishes between retained experts, who have been hired solely for the purposes of providing expert opinions for trial and are required to submit an expert reports, and other experts, such as treating physicians, who are not required to submit formal reports. In fact, in discussing the requirements of Rule 26(a)(2)(B), the notes of the Advisory Committee on Rules indicate the intent that treating physicians are to be treated as experts, but are not subject to the formal requirements of that section.
The requirement of a written report in paragraph (2)(B), however, applies only to those experts who are retained or specially employed to provide such testimony in the case or whose duties as an employee of a party regularly involve the giving of such testimony. A treating physician, for example, can be deposed and called to testify at trial without any requirement for a written report.
Wreath v. United States, 161 F.R.D. 448, 449 (D.Kan. 1995). Accordingly, the Court finds that Bovey's treating physicians are entitled to recover a reasonable fee for their testimony in excess of the statutory fee set forth in 28 U.S.C. § 1821(b). In so holding, the Court does not express any opinion on whether the amounts charged by these physicians constitute a "reasonable fee", as that issue is not before the Court. The February 25, 2002, Order of Magistrate Judge Gorman is affirmed, and Defendant's objections thereto are denied.
III. Motion for Leave to Amend Answer and to Assert a Counterclaim
Defendant also seeks leave to file an amended answer and counterclaim. The basis for this motion is that through discovery, it has uncovered facts demonstrating that Bovey herself has engaged in sexually inappropriate conduct in the workplace. Defendant contends that this evidence is relevant to defeating Bovey's sexual harassment claim because it casts doubt on her ability to demonstrate that the conduct was unwelcome or subjectively offensive and also forms a basis for taking affirmative action against her under its zero tolerance policies.
More than two weeks have passed since the filing of this motion and Bovey has presented no objection to the proposed amendment. Accordingly, Defendant's Motion for Leave to Amend is granted.
IV. Motion for Extension of Discovery Schedule
Finally, the parties have filed an Agreed Motion for an Extension of the Expert Discovery Deadline. In light of the previous rulings contained in this Order, the Court finds the requested extension appropriate. Accordingly, the discovery deadline will be extended in that Defendant shall complete Bovey's mental examination within the next 21 days. Defendant shall then submit its expert report by May 3, 2002, and Bovey shall complete any discovery of this expert no later than May 24, 2002. As the Court does not wish to receive summary judgment motions that are incomplete, in that discovery has not been completed at the time of filing, the dispositive motion filing deadline will be extended to May 31, 2002; Bovey's response is due on or before June 21, 2002, with any reply from Defendant to be filed by July 5, 2002. The final pretrial conference and jury trial dates are vacated and will be reset if necessary upon the resolution of the dispositive motions.
CONCLUSION
For the reasons set forth above, Defendant's Emergency Motion to Compel Mental Examination Pursuant to Fed.R.Civ.P. 35(a) [#32] is GRANTED. Defendant's Objections to the February 25, 2002, Order of the Magistrate Judge [#30] are DENIED, and the February 25, 2002, Order is AFFIRMED. Defendant's Motion for Leave to Amend [#35] is GRANTED. The Agreed Motion for an Extension of the Expert Discovery Deadline [#42] is GRANTED in that all expert discovery will be completed by May 24, 2002. The dispositive motion filing deadline is reset to May 31, 2002, and the final pretrial conference set for July 12, 2002, and jury trial set for September 3, 2002, are VACATED.