United States District Court, S.D. Indiana, Indianapolis Division
In Re NON-PARTY SUBPOENA DIRECTED TO DANIEL J. BECKMAN, M.D.
ORDER ON DISCOVERY DISPUTE
BAKER UNITED STATES MAGISTRATE JUDGE.
issue before the Court is whether Daniel J. Beckman, M.D. is
entitled to payment of a witness fee beyond the $40 statutory
amount set in 28 U.S.C. § 1821 for his subpoenaed
attendance at a deposition as a lay witness in an employment
discrimination case. Dr. Beckman has not been identified as
an expert witness and is not testifying as a treating
physician. He is a fact witness. Thus, as explained below,
Dr. Beckman is only entitled to the $40 statutory witness
attendance fee. Any request beyond that amount is denied.
parties appeared by counsel on November 14, 2019, for a
telephonic status conference to address ongoing issues
regarding Dr. Beckman's witness fee. After hearing from
both sides, the Court took the matter under advisement and
gave the parties an opportunity to each submit a short brief
on the fee issue if desired. Counsel for Fred W. Holland,
M.D. submitted a memorandum arguing that Dr. Beckman is a
fact witness and not entitled to more than the statutory $40
amount. [Filing No. 20.] Counsel noted numerous physicians in
the underlying case have been subject to a deposition and
none were compensated beyond the $40 statutory amount.
[Filing No. 20, at ECF p. 1.] Counsel for Dr. Beckman did not
submit a memorandum but indicated during the conference that
Dr. Beckman's position is that he is entitled to a
reasonable fee significantly in excess of $40.
issue is whether Dr. Beckman, a non-party witness, is
entitled to collect a fee for testifying at a deposition
beyond the statutory amount of $40 set out in 28 U.S.C.
§ 1821(b).Dr. Holland cites Demar v. United
States, 199 F.R.D. 617, 618-19 (N.D. Ill. 2001). In
Demar, the Northern District of Illinois addressed
the issue of a treating physician fact witness. Id.
The court noted that there is a district court split
regarding compensation of a treating physician. Id.
Ultimately, the Northern District of Illinois determined that
physicians should not be singled out for special treatment
and concluded that the treating physician fact witness at
issue was only entitled to the statutory fee of $40 because
he was not an expert witness. Id. at 619-20. In
comparison, Bovey v. Mitsubishi Motor Mfg. of America
Inc., No. 00-1402, 2002 WL 820670, at *2 (C.D. Ill.
April 3, 2002), found “the line of cases allowing
treating physicians to receive a reasonable fee in excess of
the statutory rate to be more persuasive.”
no one in this matter asserts that Dr. Beckman is a treating
physician or an expert witness. He is simply a fact witness.
Thus, the case law is much clearer-Dr. Beckman is only
entitled to the $40 statutory amount. See. e.g.,
Lock Realty Corp. v. U.S. Health, LP, No.
3:06-cv-487RM, 2011 WL 4688823 (N.D. Ind. Oct. 3, 2011)
(“Mr. Wesp testified as a fact witness, not an expert,
and the rate billed for his services ($1, 500.00) and travel
time ($750.00) exceeds that recoverable for a fact witness.
28 U.S.C. § 1821 entitles witnesses to a modest
attendance fee (currently $40.00 per day), mileage, and
subsistence. The court, accordingly, reduces Lock
Realty's witness fee request for Mr. Wesp's services
from $2, 270.00 to $60.00 (the one day witness fee allowed
under 28 U.S.C. 1821, plus $20.00 for subsistence
costs).”), aff'd, 707 F.3d 764 (7th. Cir.
2013). See also Patterson v. Avis Rent A Car
Systems, Inc., 48 F.Supp.3d 532, 533 (S.D.N.Y. 2014)
(“[C]ompensation of a fact witness is governed by 28
U.S.C. § 1821, which provides for a $40 per day fee for
each day's attendance. By contrast, expert witnesses
designated under Rule 26 are entitled to a reasonable fee for
time spent in responding to discovery paid by the party
seeking the discovery, unless manifest . . . injustice would
result.” (Internal citation and quotation marks
omitted)); Fisher v. Ford Motor Co., 178 F.R.D. 195,
198-99 (N.D. Ohio 1998) (“[P]ursuant to Fed.R.Civ.P.
45(b)(1) and 28 U.S.C. § 1821, Drs. Gainsburg,
O'Hara, and Sharma are conventional fact witnesses, who,
like all fact witnesses with potentially relevant and
necessary information, are entitled to $40 per day plus
mileage for their attendance at depositions.”).
Southern District of West Virginia recently addressed a
situation very similar to the underlying case. See
Wei-Ping Zeng v. Marshall University, No.
3:17-cv-03008, 2019 WL 937328 (S.D. W.Va. Feb. 26, 2019). The
West Virginia district court noted:
In some cases, physicians who are not specifically retained
or employed to provide expert opinions nonetheless have been
paid an “expert witness” fee. . . . However, this
view is not universally held and certainly does not apply to
physicians deposed as fact witnesses and not as treating
health care providers, or retained expert witnesses. In each
case, the difference depends on the subject matter of the
Id. at *4 (internal citations omitted). The court
concluded that “[t]he witnesses in this case, some of
whom are physicians and some of whom are scientists and other
professionals, are not being deposed to provide opinions
within their specialized skill and knowledge.”
Id. Rather, the court noted that the witnesses were
“being questioned regarding their involvement in the
tenure application submitted by Plaintiff and their
observations and recollections of the process. As such, they
are fact witness[es], entitled to no more than the statutory
witness fee.” Id. While this Court is not
bound by a decision in West Virginia or other district
courts, the same reasoning and analysis applies. Thus, Dr.
Beckman, as a fact witness testifying about his involvement
in a hiring decision, is entitled to no more than the
statutory witness fee.
Dr. Beckman is only entitled to collect the statutory amount
of $40 for his attendance at a deposition as a fact witness
in this matter. Because Dr. Beckman has not presented any
evidence of mileage expenses (his ...