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Beckerman v. Surtani

Court of Appeals of Indiana

February 13, 2015

Brian Beckerman, Appellant-Plaintiff,
v.
Nimu Surtani, M.D., and Central Indiana Orthopedics, P.C., Appellees-Defendants

Appeal from the Madison Circuit Court, The Honorable Dennis D. Carroll, Judge. Cause No. 48C06-1203-PL-51.

ATTORNEY FOR APPELLANT: James E. Ayers, Wernle, Ristine & Ayers, Crawfordsville, Indiana.

ATTORNEY FOR APPELLEES: Michael D. Conner, Spitzer Herriman Stephenson, Holderead Conner & Persinger, LLP, Marion, Indiana.

Najam, Judge. Mathias, J., and Bradford, J., concur.

OPINION

Page 631

Najam, Judge.

Statement of the Case

[¶1] Brian Beckerman appeals the trial court's judgment for Nimu Surtani, M.D., and Central Indiana Orthopedics, P.C. (collectively, " Dr. Surtani" ), on Beckerman's motion for reimbursement of expert witness fees pursuant to Indiana Trial Rule 26(B)(4). Beckerman raises a single issue for our review, namely, whether the trial court abused its discretion when it denied his motion for reimbursement. We affirm.

Facts and Procedural History[1]

[¶2] On March 23, 2012, Beckerman filed a medical-malpractice complaint against Dr. Surtani. According to Beckerman, his allegations would be supported by the expert opinion of Dr. Randall Smith, a Pennsylvania medical doctor. In September of 2012, Beckerman obtained an affidavit from Dr. Smith in which Dr. Smith stated that he had reviewed Beckerman's medical records and the care Beckerman had received from Dr. Surtani, and he had concluded that " Dr. Surtani's treatment of Mr. Beckerman was negligent and fell below the standard of care for an orthopedic surgeon . . . , which was a factor in the resulting damages." Appellant's App. at 101.

[¶3] As such, Dr. Surtani sought to depose Dr. Smith. Dr. Smith informed the parties that his deposition fees were $4,000 up front for up to four hours of deposition testimony, $1,000 per hour after the first four hours, and $400 per hour for preparation time. See id. at 20, 55. Dr. Surtani objected to Dr. Smith's rates, and he filed a motion with the trial court, pursuant to Indiana Trial Rule 26(B)(4)(a)(ii),[2] to depose

Page 632

Dr. Smith and to have the court set reasonable fees and expenses for that deposition.

[¶4] On March 24, 2014, the court entered an order permitting the deposition and instructing Dr. Surtani to " tender to Randall Smith M.D. the sum of $2000.00[] to cover two hours of deposition time and two hours of preparation time," or $500 per hour. Id. at 25. The court further ordered that " any additional fees required by Dr. Smith to give his deposition shall be the responsibility of the Plaintiff . . . ." Id. The court then added that, if Beckerman could later show that an hourly rate above $500 was reasonable, the court would " entertain a motion by the Plaintiff to require the Defendants to reimburse the Plaintiff for the sums paid to Dr. Smith . . . in accordance with this order." Id. ...


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