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IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

JOSEPH J. SMITH ) 

 Plaintiff, ) 

 ) 

 vs. ) 12 C 4546 

 ) 

THE CITY OF CHICAGO, ) JUDGE BUCKLO 

CAPTAIN MARK ALTMAN ) 

) Magistrate Judge Kim 

 Defendants. ) 

DEFENDANTS’ MOTION TO COMPEL PLAINTIFF’S EXPERT DEPOSITION 

UNDER REASONABLE CIRCUMSTANCES FOR A REASONABLE FEE

Defendant Mark Altman, by one of his attorneys, Colin B. White, Assistant 

Corporation Counsel, respectfully moves this Court, pursuant to Federal Rule of Civil 

Procedure 26(e), to compel plaintiff’s named expert witness to sit for his deposition under 

reasonable circumstances and for a reasonable fee. In support of this motion, Defendants 

state as follows: 

1. This case involves a claim by Plaintiff that Defendant Altman used 

excessive force against him. Plaintiff is seeking damages for injuries to his back and 

neck allegedly suffered after his altercation with Defendant Altman. 

2. Plaintiff was treated for his injuries by Dr. Patrick Sweeney of Minimally 

Invasive Spine Specialists. 

3. In addition to being Plaintiff’s treating physician, Dr. Sweeney was named 

as an expert witness by Plaintiff on September 16, 2013. Plaintiff’s counsel stated that in 

addition to testifying to the treatment and care of the Plaintiff, Dr. Sweeney may testify 

to, among other things: 1) his opinion that the Plaintiff’s interaction with Defendant 

Case: 1:12-cv-04546 Document #: 66 Filed: 09/27/13 Page 1 of 5 PageID #:216
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Altman on the date of the incident caused Plaintiff’s injuries, 2) future limitations the 

Plaintiff may have due to his alleged injuries, and 3) Plaintiff’s pain and suffering. 

4. On September 25, 2013, Darwin Olortegui, a paralegal supervisor for the 

City of Chicago, contacted Dr. Sweeney’s office by telephone to schedule the doctor’s 

deposition. Dr. Sweeney’s office manager Sharon informed Mr. Olortegui that Plaintiff 

would only be deposed on Fridays at 3 p.m. at his office in Mokena, Illinois for a fee of 

$1,200 per hour. 

5. Mr. Olortegui told Sharon that since the City of Chicago was a taxpayer 

funded municipality, they could not afford to pay $1,200 per hour. Mr. Olortegui offered 

Dr. Sweeney a reasonable fee of $600 per hour and informed Sharon that courts usually 

set expert fees at $400-$500 per hour. Dr. Sweeney’s office manager declined the City’s 

offer for a reasonable fee and told Mr. Olortegui to get a court order instead. 

6. Due to the nature of the plaintiff’s injuries and the potential length of the 

deposition, Mr. Olortegui also requested dates Dr. Sweeney would be available before 3 

p.m. Sharon declined to provide any dates and then withdrew the previous dates offered 

by the doctor for his deposition. 

7. Defendants request this Court compel Dr. Sweeney to sit for his deposition 

under reasonable circumstances and for a reasonable fee. Dr. Sweeney’s deposition 

could take up to 7 hours; it is unreasonable of him to require Defendants to take his 

deposition only after 3 p.m. on Fridays at his office in Mokena. Dr. Sweeney should be 

produced by Plaintiff’s counsel at the office of Defendants’ counsel on a date agreed to 

by the parties at a time before 12 p.m. 

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8. Under Federal Rule of Civil Procedure 26(b)(4)(a), a party seeking 

discovery from an expert witness must “pay the expert a reasonable fee for time spent,” 

unless “manifest injustice would result.” Rodriguez v. City of Chicago, 2009 WL 

2413750 (N.D.Ill. 2009). Dr. Sweeney’s requested fee of $1,200 is unreasonable and 

would result in manifest injustice. 

9. In order to determine the reasonableness of a fee, courts consider seven 

factors: 1) the witness’ area of expertise; 2) the education and training that it required to 

provide the expert insight which is sought; 3) the prevailing rates of other respected 

available experts; 4) the nature, quality and complexity of the discovery responses 

provided; 5) the fee actually charged by the expert on related matters; and 7) any other 

factor likely to assist the court. Royal Maccabees Life Ins. Co. v. Malachinski, 2001 WL 

290308 (N.D. Ill. 2001). In Malachinski, Judge Guzman ruled Plaintiff had the burden to 

demonstrate that its expert rate was reasonable, and if the parties provided little evidence 

to support their interpretation of a reasonable rate, the court could exercise its discretion 

in setting the reasonable rate. Id.

10. Defendants request that this Honorable Court determine a reasonable 

hourly fee for Dr. Sweeney. 

For the foregoing reasons, Defendants respectfully request pursuant to Fed. R. 

Civ. P. 26 that the Court compel plaintiff’s expert Dr. Patrick Sweeney be compelled to 

sit for his deposition under the reasonable circumstances proposed by Defendants for a 

reasonable fee determined by this Court and for any other relief this Court deems just and 

proper. 

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Dated: September 27, 2013 

Respectfully submitted, 

 

 /s/ Colin B. White 

Colin B. White 

 Assistant Corporation Counsel 

 City of Chicago Department of Law 

 30 N. LaSalle, Suite 900 

 Chicago, IL 60602 

 (312) 744-9171 

Attorney No. 6304276 

Attorney for Defendant Altman 

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CERTIFICATE OF SERVICE

 I hereby certify that on September 27, 2013, I electronically filed the foregoing 

MOTION TO COMPEL PLAINTIFF’S DEPOSITION TESTIMONY UNDER 

REASONABLE CIRCUMSTANCES FOR A REASONABLE FEE using the 

CM/ECF system and by fax, which will send notification of such filing to the following: 

 

 bhorwitz@hrbattorneys.com 

 ubansal@bhlfattorneys.com

 Dr. Patrick Sweeney (fax) 

 Fax: 708-390-2299 

 

 /s/ Colin B. White 

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