process authorized by Rule 26(b)(4)(A), to which all experts who may testify are subject, that
generates the requirement under Rule 26(b)(4)(C)(i) that a reasonable fec be paid.'
B.

Another line of reasoning on the reasonable fee issue recently emerged from a court in this
district. Demar v. United States, 199 F.R.D. 617 (N.D. Ill. 2001). In Demar, the court sided with
those courts holding that Rule 26 docs not require payment of a reasonable fec to the treating
physician who is deposed, on the basis of policy rather than an interpretation of the language and
structure of Rule 26.

The Demar court reasoned that payment of a reasonable fee to a treating physician who is
merely a “fact witness” would constitute unwarranted “special treatment” for doctors. 199 F.R.D.
at 619. The court stated that it believed such special treatment would result in a “slippery slope” that
would not allow courts to draw a principled line between doctors and other professionals who are

not retained as experts, but who also might have special expertise to offer in connection with their

"Baker — and defendant (Def. Resp. at 2-3) ~ cite certain Seventh Circuit cases (o support their analysis.
Richardson v. Consolidated Rail Corp., 17 F.3d 213 (7" Cir. 1994); O'Conner v. Commonwealth Edison Co., 13 F.3d
1090 (7thCir. 1994); Patel v. Gayes, 984 F.2d 214 (7" Cir. 1993). For several reasons, we do not believe that those
decisions answer the question of whether payment of reasonable fees is required to a disclosed treating physician who
is deposed.

First, none of those cases decide -- or even discuss -- the question of whether Rule 26(b)(4)(C)(i) requires
payment ofa reasonable fee to the treating physician who is disclosed under Rule 26(a)(2)(A) and deposed as authorized
by Rule 26(b)(4)(A). Second, Pare! was based on the pre-1993 version of Rule 26 which ~ as described above — was
materially changed in 1993; and, Richardson relies on Patel. Richardson, 17 F.3d at 218. Third, Richardson may be
read as approving the district court decision to allow treating physicians to testify to matters “within their personal
knowledge,” but not to matters that were “acquired or developed in anticipation of litigation or tial,” 17 F.3d at 218,
presumably because the latter was not timely disclosed. ‘That distinction is precisely the line drawn by Rule 26(a)(2),
which does not impose a report requirement as eating physicians so long as they testify solely as treaters. But, as we
have explained, the report requirement is not what (riggers the requirement that a reasonable fee be paid to the doctor
being deposed. Fourth, O'Connor rejected a contention that a treating physician “is exempt from the requirements of
Federal Rules of Evidence 702 and 703.” 13 F.3d at 1105 n. 14. The Court's analysis here is consistent with that
conclusion in O'Connor, as we (like Rule 26(a)(2)(A) itself) focus not on whether the witness is a treater or a retained
expert, but instead on whether the witness will offer testimony that falls under Rule 702 -- which the treating physicians
surely will do

13


rather because he was an actor or viewer with respect to transactions or occurrences that are part of
the subject matter of the lawsuit. Such an expert should be treated as an ordinary witness.”
Advisory Committee Notes to 1970 Amendment: to Rule 26, Subdivision (b)(4), at 146 (West 2000
Rev. Ed.). Various courts have held that under the 1970 version of Rule 26, a treating physician who
offers testimony as an occurrence witness, rather than as a retained expert, should be considered “an
actor or viewer” and “treated as an ordinary witness.” See, e.g., Patel v. Gayes, 984 F.2d 214, 217
(7" Cir. 1993),

Thus, the 1970 version of Rule 26 expressly provided for discovery of retained experts: with
one set of rules to govern discovery of testifying retained experts (Rule 26(b)(4)(A)), and another
set of rules to govern discovery of non-testifying retained experts (Rule 26(b)(4)(B)). Rule
26(b)(4)(C) provided that the retained expert be paid a reasonable fee for time spent in responding
to discovery. The import of considering the treating physician as an ordinary witness under the 1970
version of Rule 26 was thal the treating physician would not be entitled to his or her “reasonable fee”
for taking the time to appear for deposition, but would be limited to the same modest witness fee
provided to any witness who testifies pursuant to subpoena under Fed. R. Civ. P. 45.

On December 1, 1993, Congress amended Rule 26(b)(4), and added a new subsection, Rule
26(a)(2), relating to expert disclosures. These provisions state, in relevant part, as follows:

(a)(2) Disclosure of Expert Testimony.

(A) In addition to the disclosures required by paragraph (1), a party shall disclose

to other parties the identity of any person who may be used at trial to present

evidence under Rules 702, 703, or 705 of the Federal Rules of Evidence.

(B) Except as otherwise stipulated or directed by the court, this disclosure shall, with

respect to a witness who is retained or specially employed to provide expert
testimony in the case or whose duties as an employee of the party regularly involve


of Rule 26(b)(4)(A), which specifically addresses when a deposition of a retained expert may
proceed: “Ifa report from the expert is required under subdivision (a)(2)(b), the deposition shall not
be conducted until after the report is provided.” The word “if” connotes a separation between those
from whom a report is not required (e.g., those who are not retained or specially employed experts),
and those from whom a report is required (e.g., a treating physician). The distinction in the timing
of depositions is further evidence that there are two sels of experts “whose opinions may be
presented at trial” -- those who are retained and those who are non-retained.,

Fourth, Rule 26(b)(4)(C) speaks to the payment of fees in connection with the deposition of
any expert. Rule 26(b)(4)(C)(i) states that - absent manifest injustice — when any expert is deposed,
whether a testifying expert or a consulting expert (who is not expected to testify but whose
deposition is permitted under the limited circumstances set forth in Rule 26(b)(4)(B)), “the court
shall require that the party seeking the discovery pay the expert a reasonable fee for lime spent in
responding to discovery under this subdivision” (emphasis added). Rule 26(b)(4)(C)(ii) further
states that when a consulting expert is deposed, absent manifest injustice the party seeking the
discovery also must pay “a fair portion of the fees and expenses reasonably incurred by the [party
who retained the consulting expert] in obtaining the facts and opinions from the expert.” Thus, while
Rule 26(b)(4)(C) draws a distinction between testifying and consulting experts, it makes no
distinction between the retained and non-retained testifying expert. The rule squarely directs that
all testifying experts who are deposed be paid a reasonable fee.

Based on the foregoing analysis, we conclude that treating physicians who may be called to
testify clearly fall within the definition ofan expert as that term is used in Rule 26(a)(2)(A). The fact

that the report requirement imposed by Rule 26(a)(2)(B) does not apply to a physician testifying


also state that, as used in Rule 26 (and Rule 30), the word “expert” refers to “those persons who will
testify under Rule 702 of the Federal Rules of Evidence with respect to scientific, technical, and
other specialized matters.” /d. at 154. This definition of “expert” does not distinguish between
witnesses who are retained lo offer opinion testimony under Rule 702, and witnesses who are not
retained but who nonetheless will offer opinion testimony under Rule 702.

The comments further state that when the expert testimony will be offered by a retained
expert (or someone specially employed to give expert testimony or whose duties regularly involve
giving such testimony), Rule 26(a)(2)(B) imposes an enhanced disclosure requirement — a “detailed
and complete written report” setting forth certain specified categories of information. See Advisory
Committee Notes to 1993 Amendments to Rule 26, Paragraph(2), at 153. The comments specifically
note that this requirement of a written report would not ordinarily apply to treating physicians:

The requirement of a written report in paragraph [26(a)](2)(B), . . . 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 or called to testify

at trial without any requirement for a written report. By local rule, order, or written

stipulation, the requirement of a written report may be waived for particular experts

or imposed upon additional persons who will provide opinions under Rule 702.

See Id., at 154.

The comments further confirm that the revisions to Rule 26(b)(4)(A) “provide that experts
who are expected to be witnesses will be subject to deposition prior to trial,” and that
Rule 26(b)(4)(C), “bearing on compensation of experts, [was] revised to take account” of that
change. The comments explain that “[cJoncerns regarding the expense of such depositions should

be mitigated by the fact that the expert’s fees for the deposition will ordinarily be borne by the party

taking the deposition.” /d. at 155.


giving expert lestimony, be accompanied by a written report prepared and signed by
the witness. The report shall contain a complete statement of all opinions to be
expressed and the basis and reasons therefor; the data or other information considered
by the witness in forming the opinions; any exhibits to be used as a summary of or
support for the opinions, the qualifications of the witness, including a list of all
publications authored by the witness within the preceding ten years, the
compensation to be paid for the study and testimony; and a listing of any other cases
in which the witness has testificd as an expert at trial or by deposition within the
preceding four years.

(b)(4) Trial Preparation: Experts.

(A) A party may depose any person who has been identified as an expert whose
opinions may be presented at trial. If a report from the expert is required under
subdivision (a)(2)(B), the deposition shall not be conducted until after the report is
provided.

(B) A party may, through interrogatories or by deposition, discover facts known or
opinions held by an expert who has been retained or specially employed by another
party in anticipation of liligation or preparation for trial and who is not expected to
be called as a witness at trial, only as provided by Rule 35(b) or upon a showing of
exceptional circumstances under which it is impracticable for the party seeking
discovery to obtain facts or opinions on the same subject by other means.

(C) Unless manifest injustice would result, (i) the court shall require that the party
secking discovery pay the expert a reasonable fee for time spent in responding to
discovery under this subdivision; and (ii) with respect to discovery obtained under
subdivision (b)(4)(B) of this rule the court shall require the party seeking discovery
to pay the other party a fair portion of the fees and expenses reasonably incurred by
the latter party in obtaining facts and opinions from the expert.

Fed.R.Civ.P. 26(a)(2)(b)(4) (West 2002 Rev. Ed.) (emphasis added).
The Advisory Committee Notes to the 1993 Amendments explain that the addition of

Rule 26(a)(2) imposes a duty “to disclose information regarding cxpert testimony,” in order to enable
the opposing party to prepare for effective cross examinations at trial or to retain a rebuttal expert.

Advisory Committee Notes to 1993 Amendments to Rule 26, Paragraph(2), at 153. The comments


testimony; and a listing of any other cases in which the witness has testified as an
expert at trial or by deposition within the preceding four years.

Fed. R. Civ. P. 26(a)(2)(B). However, the experts for whom subsection (2)(B) requires this
enhanced disclosure are not the entire universe of experts covered by the disclosure requirement of
subsection (2)(A). How could they be? If subsection (2)(B) defined the exclusive group of
testifying experts in (2)(A), then subsection (2)(A) would be superfluous. A better interpretive
reading is that the greater (subsection (2)(A)) includes the lesser (subsection (2)(B)), and that the
lesser is calling out a discrete group of experts for whom a special report is requircd. This
interpretation is consistent with Rule 26 and the commentary to the 1993 Amendments, both of
which make clear that the report requirement only applies to “those experts who are retained or
specially employed to provide such testimony in the case or whose duties as any employee regularly
involve the giving of such testimony,” but not to other persons who at trial would offer testimony
that plainly falls within Rule 702 — such as a trealing physician. See, e.g., Fed. R. Civ. P.
26(a)(2)(B). See also Advisory Committec Notes to 1993 Amendments, Paragraph(2), at 153.
Third, Rule 26(b)(4)(A) tracks this distinction between retained testifying experts and other
testifying experts that is found in Rule 26(a)(2)(A) and (B). The first sentence of Rule 26(b)(4)(A)
permits the deposition of “any person who has been identified as an expert whose opinion may be
presented at trial” (emphasis added). That language plainly relates back to Rule 26(a)(2)(A), which
requires disclosure of “any person who may be used at trial to present evidence under Rules 702, 703
and 705 .. .” (emphasis added). Thus, we read the first sentence of Rule 26(b)(4)(A) to allow the
deposition of any witness disclosed under Rule 26(a)(2)(A) who may offer expert testimony at trial,

whether that person is a retained expert or not. That reading is confirmed by the second sentence


Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Jud i : i Sitting Judge if Oth
vor Magistrate Judge Sidney I, Schenkier than Assigned Judge
CASE NUMBER OL C 2372 DATE 8/21/2002
CASE Larry Hoover vs. USA
TITLE

[In the following box (a) indicate the party filing the motion, c.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

of the motion being presented}

qa)

for protective order [doc. # 27-1] is granted. The defendant United States will be required to pay a
reasonable fee to Drs. Hagman, Mather, and Marquardt for the time spent giving their depositions.

a [For further detail sce order attached to the original minute order.]

MOTION:
DOCKET ENTRY: J
(1) oO Filed motion of [ use listing in “Motion” box above.]
(2) gq Brief in support of motion due
(3) oO Answer brief to motion due___.. Reply to answer brief due
(4) QO Ruling/Hearing on___set for___ att
(5) Qo Status hearing[held/continued to] [set for/re-set for]on __setfor__at
(6) O Pretrial conference[held/continued to] [set for/re-set for] on _ setfor at
(©) Oo Trial[set for/re-set for]on at.
(8) im [Bench/Jury trial] [Hearing] held/continued to___at
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) CC) Local Rule 41.1. COFRCP41(a)(1) 1 FRCP41(a)(2).
(10) +i [Other docket entry] ENTER MEMORANDUM OPINION AND ORDER. Plaintiffs motion

No notices required, advised in open court.

No notices required
number of notices

Document
Number

Notices mailed by judge’s staff AUG 2 2 2002

Notified counsel by telephone. date dockeied

Docketing to mail notices. B
a so.
wh EST

Mail AO 450 form,

dacketing deputy initials

Copy to judge/magistrate judge
8/21/2002

eC: 4
o . * GoCrs f date maited notice
, courtroom od Le cry zg *

UK\ ( deputy’s
~N

‘ uk
initials

‘entral Clerk’s Office tnaiing deputy initial



cases holding that Rule 26 does not require the deposing party to pay a treating physician a
reasonable fee generally employ one of two distinct lines of reasoning, which we address below.
A.

Some cases hold that a physician must be retained or specially employed, as described in
Rule 26(a)(2)(B), before Rule 26(b)(4)(C)(i) and its “reasonable fee” provision will apply. For
example, in Baker, the court observed that treating physicians testify to opinions “based upon their
personal knowledge of the treatment of the patient and not information acquired from outside
sources for the purpose of giving an opinion in anticipation of trial.” 163 F.R.D. at 349. From that
observation, the Baker court concluded that “[s]uch opinions do not make the treating physicians
experts as defined by Rule 26(b)(4)(C)” Id; see also Mangala, 168 F.R.D. at 139 (adopting analysis
of Baker)

For the reasons explained above, we do not believe that this analysis comports with the
language of Rule 26 or the accompanying commentary. To begin with, Rule 26(b)(4)(C) does not
define who is or who is not an expert; that definition is found in Rule 26(a)(2)(A), which Baker and
Mangala do not address. Rather, Baker and Mangala elevate the report requirement of
Rule 26(a)(2)(B) to a litmus test of who is an expert, and conclude (in our view, mistakenly) that a
treater is not an expert, because the treater is not acquiring opinions solely for the purpose of
testifying and thus is not required to provide a report.

Moreover, the Baker analysis fails to come to grips with the fact that a treating physician who
testifies about the examination, diagnosis, and treatment of a patient necessarily draws upon his or
her skill, training and experience as a doctor. And the physician can only do so as an expert under

Rule 702 — which makes the treater an expert under Rule 26(a)(2)(A), who is subject to deposition

iW



solely as a treater does not change the fact that in testifying based on his or her work as a physician,
the treater will be calling upon specialized knowledge that can only be provided under Rule 702.
And, because a treating physician will offer expert testimony under Rule 702, the treater is included
within the class of experts who, if deposed as permitted by Rule26(b)(4)(A), must be paid a
reasonable fee by the party taking the deposition under Rule 26(b)(4)(C)(i).

UI.

Like this Court, a number of other courts have concluded that non-retained treating
physicians are to be paid a reasonable fee if they are deposed. See, e.g., 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)); Grant v. Otis Elevator Co., 199 F.R.D. 673 (N.D. Okla.
2001)(language and structure of Rule 26 authorizes reasonable fee for treating physician as an
occurrence witness expert); Bovey v. Mitsubishi Motor Manufacturing of America, 88 Fair Empl.
Prac. Cas. (BNA) 866 (C.D. Ill. 2002) (Rule 26 recognizes treating physicians as experts subject to
deposition and entitled to reasonable fee for time, even if not retained and not required to submit
report)(citing other cases approving reasonable fee). However, alike number of courts have reached
acontrary conclusion. See, ¢.g., Baker v. Taco Bell Corp., 163 F.R.D. 348 (D. Colo. 1995) (limiting
treating physicians to recovery of slatutory fee); Mangala v. University of Rochester, 168 F.R.D. 137
(W.D.N.Y. 1996) (no compensation beyond statutory rate for treating physician not being deposed
as a retained expert), Fisher v. Ford Motor Co., 178 F.R.D. 195 (N.D. Ohio 1998)(no entitlement
to compensation under Rule 26(b)(4)(C)); Demar v. United States, 199 F.R.D. 617 (N.D, Il

2001)(treating physician “fact witness” not entitled to expert’s reasonable fee under Rule 26). The


Il.

Based on the language of Rule 26 and the accompanying commentary, the Court concludes
that Rules 26(a)(2) and 26(b)(4) create, for purposes of discovery, three categories of “experts”: (1)
retained experts who may testify at trial and from whom a report is required; (2) non-retained experts
who are disclosed as witnesses who may offer Rule 702 testimony at trial, but who are not required
to submit a report; (3) retained experts who will not testify al trial (consultants). We reach this
conclusion for several reasons.

First, Rule 26(a)(2)(A) requires disclosure of “the identity of any person who may be used
at trial to present evidence under Rules 702, 703, or 705 of the Federal Rules of Evidence.” These
tules of evidence define experts by reference to their knowledge, skill, experience, training or
education, and define expert testimony by reference to whether the opinions or conclusions offered
reliably draw on that expertise in a way relevant to some issue in the case. The rules of evidence do
not limit “experts” to those persons who arc hired by a party to consult or testify — and neither does
Rule 26(a)(2)(A). By defining “experts” in terms of the testimony they seck to offer, Congress
created a broad disclosure requirement.

Second, Rule 26(a)(2)(B) requires an enhanced disclosure requirement for certain categories
of expert witnesses: that is, for the “witness who is retained or specially employed to provide expert
testimony in the case or whose duties as an employee of the party regularly involve giving expert
testimony.” For this group of experts, a written report must be provided that contains:

a complete statement of all opinions to be expressed and the basis and reasons

therefor, the data or other information considered by the witness in forming the

opinions; any exhibits to be used as a summary of or support for the opinions; the

qualifications of the witness, including a list of all publications authored by the
witness within the preceding ten years; the compensation to be paid for the study and



(b) Scope of discovery.

Unless otherwise limited by order of the court in accordance with these rules, the
scope of discovery is as follows:

(4) Trial preparation: Experts. Discovery of facts known and opinions held by
experts, otherwise discoverable under the provisions of subdivision (b)(1) of this rule
and acquired or developed in anticipation of litigation or for trial, may be obtained
only as follows:

(A)(i)_ A party may through interrogatories require any other party to identify cach
person whom the other party expects to call as an expert witness at trial, to state the
subject matter on which the expert is expected to testify, and to state the substance
of the facts and opinions to which the expert is expected to testify and a summary of
the grounds for cach opinion. (ii) Upon motion, the court may order further
discovery by other means, subject to such restrictions as to scope and such
provisions, pursuant to subdivision (b)(4)(C) of this rule, concerning fees and
expenses as the court may deem appropriate.

(B) A party may discover facts known or opinions held by an expert who has been
retained or specially employed by another party in anticipation of litigation or
preparation for trial and who is not expected to be called as a witness at trial, only as
provided in Rule 35(b) or upon a showing of exceptional circumstances under which
it is impracticable for the party secking discovery to obtain facts or opinions on the
same subject by other means

(C) Unless manifest injustice would result, (i) the court shall require that the party
seeking discovery pay the expert a reasonable fee for the time spent in responding to
discovery under subdivisions (b)(4)(A)(ii) and (b)(4)(B) of this rule; and (ii) with
respect to discovery obtained under subdivision (b)(4)(A) (ii) of this rule the court
may require, and with respect to discovery obtained under (b)(4)(B) of this rule the
court shall require, the party seeking discovery to pay the other party a fair portion
of the fees and expenses reasonably incurred by the latter party in obtaining facts and
opinions from the expert.

Rule 26 (b)(4) (1970 Amendment). The Advisory Committee Notes to the 1970 Amendment to Rule
26(b)(4) explained that the rule addressed only discovery of (and payment to) retained experts, and

did “not address itself to the expert whose information was not acquired in preparation for trial but


testimony. /d. Based on this reasoning, the Court concluded that “the unambiguous tenants of FRCP
26(b)(4)(C) and § 1821 provide that expert witnesses — independent of their profession -- obtain
compensation at a reasonable fee[,] while fact witnesses — independent of their profession ~ receive
compensation at the statutory fee of $40.” 199 F.R.D. at 620 (emphasis in original) (internal
notations omitted).

Although we agree with that general statement, in our view, the term “fact witness” —
although widely used — does not fully describe the role of the treating physician who testifies, and
it is here that we part ways with our colleague. Like the Demur court, we believe that the tenants
of Rule 26(b)(4)(C) are “unambiguous.” But, we read that rule to require payment of a reasonable
fee to all experts who are disclosed under Rule 26(a)(2)(A) and deposed under Rule 26(b)(4) ~
irrespective of whether they are retained experts, and irrespective of whether they are required to
submit a report under Rule 26(a)(2)(B). The Demar court did not address Rule 26(a)(2)(A) and its
relationship to Rules 26(b)(4)(A) and (C) — which is not surprising, as neither of the parties offered
an analysis of those provisions. Rather, a review of the briefs filed in Demar shows that the plaintiff
pitched his argument solely on policy grounds — which the Demar court rejected. In any event,
because we find that the unambiguous language of Rule 26 requires payment to the treating
physician who is deposed, we do not believe that there is any policy choice to make: Congress made

its choice, and we are not free to disregard it.

14


faith to reach an agreement on the fee issue. Ifa compromise cannot be reached, then the Court will
, order the parties to brief the issue and we will decide what constitutes a reasonable fee”

ENTER:

Wy 1 AGL.

SIDNEY I. SCHENKIER
United States Magistrate Judge

Dated: August 21, 2002

*Although plaintiff argues that Fed. R. Civ. P. 45(c)(3)(B) supports the award ofa reasonable fee and provides
guidelines for determining the amount to award (P1.’s Mot. at 5-6), the Court finds that provision applies only where a
subpoena is served on an unretained expert who has “opinion or information not describing specific events or occurrences
in dispute. . . .” Here, the treating physicians are occurrence witnesses who therefore do not fall within the purview of
Rule 45(c)(3)(B). That is defendant’s point (Def.’s Resp. at 4-5 and n.2), and it is well-taken. We reserve the question
of whether the factors for awarding a reasonable fee set forth in the commentary to Rule 45(c)(3)(B) are useful in
determining 4 reasonable fee under Rule 26(b)(4)(C)(i).

16


anticipation of litigation or for trial.” Persons with special expertise who did not fall within this
category (¢.g., treating physicians) were considered to be as “ordinary witnesses” for purposes of
discovery. See, e.g., Rule 26, Advisory Committee Notes to 1970 Amendment.

Despite the broader reach of Rule 26 in its present incarnation, federal courts are divided on
the question of whether a party seeking to depose a treating physician must pay that doctor’s
“reasonable fees.” That question is what now brings this case before the Court.

The plaintiff has moved for a protective order (doc. # 27-1), seeking an order requiring the
defendant, the United States of America, to pay a “reasonable fee” to three of plaintiff’s treating
physicians — Drs. Hagman, Marquardt and Mather— whom the plaintiff has disclosed as persons who
may give expert testimony within the meaning of Fed. R. Evid. 702, and whom the defendant has
elected to depose. After careful review of the relevant materials, this Court concludes that plaintiff's
treating physicians fall squarely within the meaning of the term “expert” as it is used in Rule
26(a)(2)(A), Rule 26(b)(4)(A) and Rule 26(b)(4)(C)(i). Because plaintiffs’ treating physicians are
experts who may be deposed under the authority of Rule 26(b)(4)(A), this Court finds that the
defendant must pay them a “reasonable fee” under Rule 26(b)(4)(C)(i) for their time spent in
submitting to depositions. Accordingly, plaintiff's motion for protective order is granted. Our
reasons for this conclusion follow.

I.

We begin with an examination of the language of Rule 26 and the accompanying
commentary, as those materials pertain to expert discovery. Rule 26 first was amended to address
discovery of experts in 1970. Rule 26(b)(4), which was added as part of 1970 amendments, provided

in relevant part as follows:


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

LARRY HOOVER,
Plaintiff,
vs.
No. 01 C 2372
UNITED STATES OF AMERICA,

Magistrate Judge Schenkier
Third Party Plaintiff,

UNITED STATES OF AMERICA,

Third Party Plaintiff,

)
)
)
)
)
)
)
)
)
)
vs. )
)
)
)
)
)
)
vs. )
)
UNITED AIRLINES, INC., )
)
Third Party Defendant. )
MEMORANDUM OPINION AND ORDER
In 1993, Congress amended Federal Rule of Civil Procedure 26 to define an “expert” as “any
person who may be used at trial to present evidence under Rules 702, 703, or 705 of the Federal
Rules of Evidence” (Fed. R. Civ. P. 26(a)(2)(A)); to allow the deposition of “any person who has
been identified as an expert whose opinions may be presented at trial” (Fed. R. Civ. P. 26(b)(4)(A));
and, absent “manifest injustice,” to “require thal the party seeking discovery pay the expert a
reasonable fee for time spent in responding to discovery. . .” (Fed. R. Civ. P. 26(b)(4)(C)(i)). These

amendments were significant, as the definition of an “expert” for purposes of discovery under Rule

26 previously was limited to persons with knowledge or opinions “acquired or developed in


under Rule 26(b)(4)(A) and who, under the terms of Rule 26(b)(4)(C)(i), is entitled to payment of
a reasonable fee for the deposition.

To be sure, Court can envision a case where a physician who may testify would not do so as
an expert, but as an ordinary occurrence witness. Take, for example, a physician standing on the
street corner who observes an automobile accident. As an occurrence witness, the physician could
testify solely to the facts he or she observed as a bystander (such as, the specd of the vehicle and the
color of the traffic lights), without calling upon any special expertise as a doctor. But this bystander
example is clearly different from a case such as this one, where the treating physician is called as an
occurrence witness to testify about facts (hat he or she observed in the course of medical treatment
rendered by that doctor. In that case, the doctor’s special expertise is part of the sum and substance
of the “occurrence” testimony, and cannot be artificially separated into “non-expert” testimony and
“expert” testimony for purposes of Rule 26.

We also recognize that a treating physician sometimes may be asked to offer opinions that
go beyond information acquired or opinion reached as a result of the treating relationship. In that
situation, the case law establishes thal the treating physician may become the kind of “expert” who
is required to submit a report pursuant to Rule 26(a)(2)(B). See, e.g., Zurecki v. National R.R.

Passenger Corp., 914 F. Supp. 1566, 1573 (N.D. Ill. 1996)(Rule 26(a)(2)(B) report required where

opinion regarding ultimate causation was not derived solely from treating physician’s treatment of
plaintiff); Wreath v. United States of America, 161 F.R.D. 448 (D. Kan. 1995)(treating physician

offering expert testimony beyond scope of treating relationship must provide report). However, it

is not the report ilself that generates the requirement (hat reasonable fecs be paid. ILis the deposition


CONCLUSION

Like the courts that have held that treating physicians are entitled to a reasonable fec under
Rule 26, see, e.g., Grant v. Otis Elevator Co., 199 F.R.D. 673 (N.D. OKI, 2001), we believe that the
express terms of Rule 26 and the accompanying commentary make clear that the treating physician,
is a person who may “present cvidence under Rules 702, 703, or 705 of the Federal Rules of
Evidence.” Fed. R. Civ. P. 26(a)(2)(A). Although an “occurrence witness,” the treating physician
nonetheless has special insights by virtue of his or her training that will inform the factual lestimony
he or she will offer at trial. Thus, we hold that if a party intends to offer such evidence at trial
through the treating physician’s testimony, then Rule 26 treats the physician as a non-retained
occurrence witness expert, so long as he or she is identified and disclosed pursuant to the Rule
26(a)(2)(A). When that occurs the treating physician may be deposed, and if that happens, the
treating physician is entitled to a “reasonable fee” for his or her time preparing for and giving that
deposition, just like any other expert.

For the foregoing reasons, the plaintiffs motion for protective order (doc. # 27-1) is
GRANTED. The defendant United States will be required to pay a reasonable fee to Drs. Hagman,
Mather, and Marquardt for the lime spent giving their depositions. In so ruling, we express no view
as to what will constitute a “reasonable fee,” since that question has not been directly addressed by

either party. Instead, we leave it the parties and the doctors, in the first instance, to atlempt in good