IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

CHRISTOPHER ENLOE,

Plaintiff,

v. CASE NO. 4:10cv433-RH/WCS

LLOYD “SKIP” SHIVER, etc., et al.,

Defendants.

_________________________________/

ORDER REQUIRING DR. ABRAMSON

TO APPEAR FOR A DEPOSITION

The plaintiff has scheduled for 5:00 p.m. on August 9, 2011, the deposition 

of Dr. Mark Abramson, a urologist who treated the plaintiff in the Department of 

Corrections. The plaintiff says he has properly subpoenaed Dr. Abramson to 

appear. But the plaintiff says that Dr. Abramson has said he will not appear—even 

though subpoenaed—unless he is paid in advance $900 for one hour’s time. The 

plaintiff has agreed to pay a fee of $200 per hour—the rate charged by a different 

physician in this case—but asserts that $900 is unreasonable. The defendants do 

not disagree with the assertion that $900 per hour is unreasonable.

Federal law sets a witness’s fee for appearing at a deposition or trial at $40 

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per day. See 28 U.S.C. § 1821(b). A person who testifies as an expert may charge 

more. There is a split of authority on the question of whether a treating 

physician—a person who has personal knowledge of facts at issue but also has 

expertise—may properly charge a fee in excess of $40 per day. Compare, e.g.,

Mangla v. Univ. of Rochester, 168 F.R.D. 137, 139 (W.D.N.Y. 1996) (holding that 

a deponent testifying solely as to the examination, treatment, and diagnosis of a 

patient was entitled to the witness fee set by 28 U.S.C. § 1821(b)), with Wirtz v. 

Kan. Farm Bureau Servs., Inc., 355 F. Supp. 2d 1190, 1212 (D. Kan. 2005) 

(holding that a treating physician called to testify as to the diagnosis and treatment 

of a patient was entitled to reasonable fee as an expert witness).

The plaintiff has not contested Dr. Abramson’s right to charge an expert fee, 

so long as it is reasonable. Nor have the defendants. 

Dr. Abramson has not been given an opportunity to be heard on the question 

of whether he must appear for the deposition even without payment of the $900 he 

has demanded. This order gives him notice of his opportunity to be heard. The 

order also makes clear that if Dr. Abramson has indeed been subpoenaed, he 

cannot refuse to appear without a court order relieving him of the obligation to 

appear.

The order authorizes Dr. Abramson to charge an expert fee and to insist on 

payment in advance. But the order caps the fee at the higher of $300 or the 

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effective hourly rate that Dr. Abramson charges the Department of Corrections for 

treating its inmates. The effective hourly rate means the effective rate Dr. 

Abramson realizes for treating Department of Corrections inmates—the total 

revenue divided by hours at a facility. If Dr. Abramson seeks to avoid appearing in 

response to the subpoena without a greater payment, he must move for a protective 

order. He may do so orally, by telephone, at the time of the scheduled deposition. 

He should know that the party who loses a motion of this kind may be required to 

pay the attorney’s fees incurred by the party who prevails on the motion. See Fed. 

R. Civ. P. 37; Devaney v. Cont’l Am. Ins. Co., 989 F. 2d 1154, 1162 (11th Cir. 

1993). Dr. Abramson may represent himself in connection with such a motion or 

may retain an attorney. But Dr. Abramson cannot refuse to appear in response to a 

properly-served subpoena without seeking a protective order.

For these reasons, 

IT IS ORDERED:

The plaintiff is granted leave to conduct the deposition of Dr. Mark 

Abramson at 5:00 p.m. on August 9, 2011. If a subpoena has been served on Dr. 

Abramson and he is paid for one hour’s attendance at the higher of $300 per hour 

or the effective hourly rate that he charges the Department of Corrections for 

treating its inmates, he must either (a) appear for the deposition, or (b) move for a 

protective order. A motion for a protective order may be made orally over the 

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telephone by calling 850-521-3601 before 5:30 p.m. on August 9, 2011. A failure 

to appear for the deposition without a court order excusing the appearance may be 

treated as a contempt of court.

SO ORDERED on August 8, 2011.

s/Robert L. Hinkle 

United States District Judge

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