UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

JOSEPH J. SMITH, 

 Plaintiff, 

 v. 

CITY OF CHICAGO and CAPTAIN 

MARK ALTMAN, 

 Defendants. 

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No. 12 CV 4546 

Magistrate Judge Young B. Kim 

October 11, 2013 

 

MEMORANDUM OPINION and ORDER

 Joseph Smith claims that Captain Mark Altman—who is employed by the 

City of Chicago Fire Department—threw him on the ground without provocation, 

injuring his back. (R. 1, Compl. ¶ 17.) He brought this lawsuit against Altman and 

the City of Chicago (together, “Defendants”) claiming, among other things, excessive 

force in violation of 42 U.S.C. § 1983 and battery under Illinois law. Discovery is 

now underway. Before the court is Defendants’ Motion to Compel Plaintiff’s Expert 

Deposition Under Reasonable Circumstances for a Reasonable Fee. (R. 66.) For the 

following reasons, the motion is granted in part and denied in part: 

Background 

Defendants explain that Smith has identified as an expert witness his 

treating physician, orthopedic surgeon Dr. Patrick Sweeney. They state that Dr. 

Sweeney will testify about his care of Smith and also provide his opinion regarding 

the causal connection between Smith’s run-in with Altman and his injuries, the 

future limitations his injuries might cause, and his pain and suffering. (R. 66, Mot. 

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¶ 3.) Defendants assert that Dr. Sweeney has informed them that he only will 

submit to being deposed at his office in Mokena, Illinois beginning at 3 p.m. on 

Fridays. According to Defendants, Dr. Sweeney also informed them that he 

requires a fee of $1,200 per hour. (Id. ¶ 4.) Defendants state that they offered 

Dr. Sweeney a fee of $600 per hour, but he declined. (Id. ¶ 5.) Accordingly, they ask 

this court to compel Dr. Sweeney to sit for his deposition at Defendants’ attorneys’ 

office at a time before 12 p.m. and to limit Dr. Sweeney to a reasonable fee, to be 

determined by the court. (Id. ¶¶ 7, 10.) 

 In response to the motion, Smith submitted a letter from Dr. Sweeney to 

support his demand for the $1,200 rate. (R. 69, Resp. Ex. A.) In his letter Dr. 

Sweeney stated that in 15 years he has never been deposed for the fee Defendants 

suggested and that the $1,200 rate is necessary to cover the “ongoing overhead” of 

his practice.1 (Id.) But because Smith neither disclosed the rate Dr. Sweeney had 

been paid for other depositions nor provided any evidence regarding the going rate 

for expert witnesses from Dr. Sweeney’s field, this court invited him to supplement 

his response with additional information. (R. 71, Oct. 4, 2013 Ord.) Dr. Sweeney 

timely supplemented his initial letter with an affidavit swearing that he has been a 

doctor for 19 years and that in 2013 he gave 13 depositions at the $1,200 hourly 

rate. (R. 72, Resp. Ex. A, Sweeney Aff. ¶¶ 3-4.) He also submitted a list including 

the case numbers, deposition dates, and total amounts he was paid for each of those 

 

1 The court does not find this information about “ongoing overhead” to be helpful to 

its analysis because his overhead cost will be the same whether Dr. Sweeney sits for 

his deposition or not. 

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13 depositions. (Id. Ex. A at 3.) The highest total amount he was paid for a given 

deposition in 2013 is $2,400. (Id.) 

Analysis

 Under Federal Rule of Civil Procedure 26(b)(4)(E), it is mandatory to pay an 

expert a reasonable fee for time spent responding to discovery “[u]nless manifest 

injustice would result.” Fed. R. Civ. P. 26(b)(4)(E); Gwin v. American River Trans. 

Co., 482 F.3d 969, 975 (7th Cir. 2007). A finding of “manifest injustice” is rare and 

the court will exempt a deposing party from paying an expert’s fees only in “extreme 

circumstances.” See Se-Kure Controls, Inc. v. Vanguard Prods. Group, Inc., 873 

F. Supp. 2d 939, 957 (N.D. Ill. 2012). But the rule requires the party seeking 

discovery to pay only a “reasonable fee,” Fed. R. Civ. P. 26(b)(4)(E)(i), and it is up to 

the party who is seeking reimbursement of an expert witness’s fees to show that 

those fees are in fact reasonable, Se-Kure Controls, 873 F. Supp. 2d at 955. 

 What constitutes a reasonable fee is a question within the court’s sound 

discretion. See Edin v. Paul Revere Life Ins. Co., 188 F.R.D. 543, 545-46 (D. Ariz. 

Sept. 24, 1999) (citing 8 Charles Alan Wright & Arthur R. Miller, Federal Practice 

& Procedure, Civil 2d, § 2034 at 469-70 (2d ed. 1994)). In determining whether an 

expert’s fees are reasonable, the court considers the following factors: 

(1) the expert’s area of expertise; (2) the education and training 

required to provide the expert insight that is sought; (3) the prevailing 

rates of other comparably respected available experts; (4) the nature, 

quality, and complexity of the discovery responses provided; (5) the fee 

actually being charged to the party that retained the expert; (6) fees 

traditionally charged by the expert on related matters; and (7) any 

other factor likely to be of assistance to the court in balancing the 

interests implicated by Rule 26. 

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Se-Kure Controls, 873 F. Supp. 2d at 955. If the party seeking reimbursement puts 

forth little evidence to support its assertion that the requested fees are reasonable, 

“the court may use its discretion in setting the reasonable rate.” Id. (quotation 

omitted); see also Profile Prods., LLC v. Soil Mgm’t Techs., Inc., 155 F. Supp. 2d 880, 

886-87 (N.D. Ill. 2001) (readjusting expert’s fee from $475 per hour to $250 per hour 

where party seeking reimbursement provided no evidence to support request under 

applicable factors). 

 Smith’s response to the motion to compel provides only minimal help to the 

court in analyzing the relevant factors. The first two factors seem to weigh in his 

favor because Dr. Sweeney has been practicing medicine since 1994, has specialized 

expertise as an orthopedic surgeon, and underwent years of education and training 

to gain that expertise. (R. 72, Resp. Ex. A, Sweeney Aff. ¶ 1.) But the court has no 

data with respect to what would likely be the most helpful factor: the market rate 

charged by other seasoned orthopedic surgeons for deposition testimony. See 

Jochims v. Isuzu Motors, Ltd., 141 F.R.D. 493, 496 n.3 (S.D. Iowa 1992) 

(characterizing market rate as “a critical” factor in determining the reasonableness 

of an expert’s fee). Nor is there any information in Dr. Sweeney’s affidavit 

supporting his blanket assertion that the treatment he gave Smith was “complex.” 

(R. 72, Resp. Ex. A, Sweeney Aff. ¶ 5.) As for what Dr. Sweeney is charging here 

compared to what he has charged in the past (factors five and six), he has listed the 

amounts he was paid for depositions in 2013, but neglected to include any 

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information with respect to earlier cases. Nor has he explained how the complexity 

of Smith’s case compares to the other cases on his list. 

 Although the parties left the court adrift on the question of what is a 

reasonable market rate for the expert testimony of an orthopedic surgeon, several 

recent cases provide at least some level of guidance. In Maxwell v. Stryker Corp., 

No. 11-cv-01524-REB-KMT, 2012 WL 2319092, at *2 (D. Colo. June 19, 2012), the 

court rejected an orthopedic surgeon’s request for an expert fee rate of $2,000 per 

hour, noting that if he charged that amount for his time during a typical 

professional workweek his annual income would be over four million dollars. The 

court concluded that $750 per hour is a reasonable rate for a treating, boardcertified orthopedic surgeon, based on the fees set in similar cases in that district. 

Id. at *2-*3. Other courts have found even $750 to be too high for the expert fee of a 

treating orthopedic surgeon, setting the rate at $400 instead. See, e.g, Anderson v. 

JAS Carriers, Inc., No. 1:12-cv-280, 2013 WL 991902, at *2 (S.D. Oh. March 13, 

2013); Broushet v. Target Corp., 274 F.R.D. 432, 434 (E.D.N.Y. 2011). In one recent 

case in which the parties failed to provide the court with market rate information, 

the court referenced a survey of physician pay showing that, largely because of low 

Medicare reimbursement rates, the average earned hourly income for orthopedic 

surgeons is only $88. See Anderson, 2013 WL 991902, at *2. Based on that data 

and the lack of information submitted by the parties, the court concluded that $400 

was the reasonable rate for the orthopedic surgeon’s discovery deposition. Id. 

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 Recent cases in which an orthopedic surgeon’s expert fee of $1,200 or above 

was deemed reasonable involve circumstances in which the party seeking to recoup 

the fee provided the court with at least some information regarding the prevailing 

market rates. For example, in Miller v. Credit, No. 12-00138-BAJ-RLB, 2013 WL 

1833310, at *3 (M.D. La. May 1, 2013), the court approved a $1,500 hourly rate 

after the party designating the orthopedic surgeon as an expert backed its request 

with evidence of comparable rates charged by other similarly respected and 

available experts in the field. The court noted that a review of fees charged by 

seven local physicians for expert deposition testimony supported the finding that 

$1,500 is reasonable. Id. Similarly, in Grauvogl v. Roby, No. 2:11-CV-333-WCLPRC, 2012 WL 4959478, at *2 (N.D. Ind. Oct. 17, 2012), the court approved an 

hourly rate of $1,500 for an orthopedic surgeon’s deposition fee where the party 

seeking reimbursement provided evidence regarding the rates charged by seven 

similar treating physicians in the previous 18 months. Smith has not provided any 

similar information here. 

 Instead of providing the court with information about the market rate for 

orthopedic surgeons’ expert testimony in this district, Smith rests on Dr. Sweeney’s 

evidence showing that he has commanded and been paid $1,200 per hour 13 times 

in the past year. But the fact that other litigants have paid Dr. Sweeney that rate 

does not necessarily translate to a conclusion that his rate is reasonable. See 

Marcelli v. Ace Am. Ins. Co., No. 10-cv-03025-PAB-KMT, 2012 WL 3744635, at *3 

(D. Colo. Aug. 29, 2012) (reducing orthopedic surgeon’s expert fee from $1,500 per 

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hour to $1,000 even though doctor claimed he had charged the higher rate for 10 

years and “never even been questioned”). Rather than reflecting a going rate for the 

expert testimony of orthopedic surgeons, those payments may simply reflect that as 

a treating physician with first-hand knowledge of a plaintiff’s condition, the parties 

are more or less bound to depose him. In that situation parties are not as free to 

shop around for an expert who charges fees that are in line with the prevailing 

market rate. As other courts have pointed out, a treating physician’s obligation to 

provide relevant testimony based on his first-hand knowledge of his patient’s 

condition cuts against the higher fees that witnesses testifying in a purely expert 

capacity might command. See Cartrette v. T&J Transport, Inc., No. 3:10-cv-277-J25MCR, 2011 WL 899523, at *1-*2 (M.D. Fla. March 15, 2011); see also Axelson v. 

Hartford Ins. Co. of the Midwest, No. 2:11-cv-01827-RCJ-GWF, 2013 WL 1261757, 

at *2 (D. Nev. March 26, 2013) (finding $1,500 per hour to be a reasonable rate for 

an expert orthopedic surgeon, but noting that the rate might be different for 

“another similarly qualified physician who was being deposed solely in his or her 

capacity as a treating physician”). 

 Weighing all of these factors, the court finds that Smith has inadequately 

supported his assertion that $1,200 per hour is a reasonable rate for the proposed 

deposition testimony. Although Dr. Sweeney apparently has received pay at that 

rate for short depositions in the past year, recent cases suggest that a reasonable 

rate for similar testimony is somewhat lower. Bearing in mind the principle that an 

“expert’s fee should not be so high as to impair a party’s access to necessary 

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discovery or result in a windfall to the expert,” see Marcelli, 2012 WL 3744635, at 

*2, the court determines that the reasonable rate must lie between the amount 

Dr. Sweeney seeks to recoup and the amount Defendants have offered to pay as 

Defendants’ motion is also unhelpful in support their assertion that $6002 an hour 

is reasonable. Accordingly this court concludes that Dr. Sweeney should be 

compelled to sit for his deposition at a rate of $900 per hour. See Profile Prods., 155 

F. Supp. 2d at 886-87 (court exercised discretion to set reasonable expert rate). 

That figure honors Dr. Sweeney’s education and considerable experience and 

balances the fact that Dr. Sweeney has been paid $1,200 for other depositions 

against the best information this court has with respect to the actual market rate 

for the deposition testimony of orthopedic surgeons. 

Conclusion

 For the foregoing reasons, the motion to compel is granted in part and denied 

in part. It is granted to the extent that Dr. Sweeney is ordered to sit for his 

deposition at a reasonable rate, which this court determines to be $900 per hour. 

As set forth in this court’s minute order dated October 4, 2013, (R. 71), it is denied 

to the extent Defendants seek to compel Dr. Sweeney to be deposed before 12 p.m. 

at Defendants’ counsel’s Chicago office. Defendants will be permitted to depose 

Dr. Sweeney at his office in Mokena, Illinois on October 18, 2013 from 3:00 p.m. 

 

2 Defendants assert in their motion that “courts usually set expert fees at $400-

$500 per hour.” (R. 66, Mot. ¶ 5.) However this conclusory assertion is wholly 

inadequate to demonstrate that $600 is a reasonable fee for Dr. Sweeney. 

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until 7:00 p.m., and if necessary, again on October 25, 2013 from 3:00 p.m. until 

6:00 p.m. 

 ENTER:

 

 ____________________________________ 

 Young B. Kim 

 United States Magistrate Judge

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