The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
VASSILIKI AGLOGALOU,
Plaintiff,
v. Case No.: 8:20-cv-2024-CEH-AAS
MICHAEL S. DAWSON and
CHERYL LYNN ONOPA,
Defendants.
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ORDER
Defendants Michael S. Dawson and Cheryl Lynn Onopa move this court
to set a reduced deposition fee for the billing records custodian of nonparty
Alexander Orthopaedic Associates (AOA). (Doc. 38). Defendants contend AOA’s
requested fee of $1,000.00 per hour “is unreasonable under Rule 26 of the
Federal Rules of Civil Procedure and should therefore be set aside.” (Id. at 3).
AOA’s response claims Defendants “have multiple other avenues to challenge
the non-party AOA’s charges and bills” and that AOA should not be
“punish[ed]” by accepting a reduced fee “for simply treating accident victims.”
(Doc. 41).
Federal Rule of Civil Procedure 26(b)(4)(e)(i) allows for expert witnesses
to be paid “a reasonable fee” for participating in depositions under Rule
26(b)(4)(a). However, the billing records custodian, Vladimir Alexander, M.D.
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(who is also the founder of AOA and a practicing board-certified orthopaedic
surgeon), is not expected to be deposed for the purposes of gathering expert
testimony under Federal Rules of Evidence 702, 703, or 705. Instead,
Defendants wish to depose AOA’s billing records custodian about the billing
practices of AOA and should not be financially penalized because AOA chose
to have its founder (who is also a board-certified orthopaedic surgeon) supply
that testimony. (Doc. 38, p. 4); see also In re American Airlines Flight 331, 2013
WL 12340490 at *3 (S.D. Fla. September 3, 2013) (denying motion to preclude
plaintiffs from calling treating physicians at trial because plaintiffs “intend[ed]
to call their treating physicians only as lay witnesses—not as experts”). Any
fees paid to Dr. Alexander are therefore governed by 28 U.S.C. § 1821.
Section 1821 allows for payment to witnesses for attending court
proceedings and depositions. Witnesses may receive $40 a day, as well as “a
common carrier expense at the most economical rate reasonably available, a
per diem subsistence allowance if an overnight stay at the place of attendance
is required, and payment for mileage, tolls, parking fees or taxicab fares.”
Buccellati Holding Italia SPA v. Laura Buccellati LLC, 2015 WL 11202358 at
*6 (S.D. Fla. Mar. 10, 2015) (citing 28 U.S.C. § 1821(a)(1)-(d)(2)). Section 1821
contains “no provision for the trial court’s award to exceed that amount.”
Goodwin Bros. Leasing, Inc. v. Citizens Bank, 587 F.2d 730, 735 (5th Cir. 1979).
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Section 1821’s witness attendance fee therefore may not be increased.
AOA does not dispute the rigid fee framework of Section 1821. Instead,
AOA asserts ordering Dr. Alexander to appear for a deposition without
increased compensation could “have a chilling effect on doctors who may refuse
to treat patients who could end up in litigation out of fear of becoming
embroiled in the litigation themselves.” Worley v. Central Florida Young Men's
Christian Association, Inc., 228 So. 3d 18 (Fla. 2017). AOA, however, chose to
designate Dr. Alexander as its billing records custodian. AOA could always
designate a non-physician employee as the record custodian deponent. Thus,
the argument that paying the statutory witness fee rate for factual billing
information will have adverse effects on patient care and treatment is not
persuasive.
Defendants’ Motion to Determine Reasonable Corporate Representative
Fee (Doc. 38) is GRANTED. Should Defendants proceed as anticipated and
subpoena the billing records custodian for a deposition regarding AOA’s billing
practices, whomever AOA designates as its billing records custodian (including
if that person is Dr. Alexander) shall receive proper compensation in
accordance with 28 U.S.C. § 1821.
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ORDERED in Tampa, Florida on October 29, 2021.
Aranda. Arpre (he Sasson,
AMANDA ARNOLD SANSONE
United States Magistrate Judge