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Volume XXVIII, No. 27, October 18, 2016 

From the Law Offices of Garan Lucow Miller, P.C.

From the Editor: Sarah Nadeau

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COURT OF APPEALS DETERMINES NO “EXPERT” WITNESS FEE MUST BE PAID
TO A PHYSICIAN-WITNESS WHO IS AN AGENT OF A PLAINTIFF MEDICAL PROVIDER

By Tara Velting and Sarah Nadeau

In the recent, published decision of Spine Specialists of MI v State Farm___NW2d___; 2016 Mich. App. LEXIS 327997 (Ct App, Oct. 13, 2016), the Court of Appeals considered whether State Farm must pay an expert witness fee to depose Dr. Radden, a neurosurgeon who also happened to be the sole owner of plaintiff, Spine Specialists of Michigan, P.C..   Dr. Radden had treated the underlying claimant, Garvin, with steroid injections, and Spine Specialists sought payment for those services from Garvin’s insurer State Farm.  State Farm denied Plaintiff’s claim for payment because it argued that the patient’s injuries did not arise from the motor vehicle accident, and further, that Dr. Radden’s services and bills were not reasonable or necessary.  Spine Specialists then filed suit.

During the course of discovery, Dr. Radden refused to be deposed without a pre-payment of $5,000 for three hours of testimony.  While the Circuit Court disagreed with the amount charged, it ordered State Farm to pay an expert fee to Dr. Radden for his testimony, reasoning that doctors would be reluctant to treat auto accident claimants if they were subject to being deposed without the ability to charge for their time as experts

On appeal, the Michigan Court of Appeals first noted that Dr. Radden was never listed as an “expert” on any witness list provided by either Spine Specialists or State Farm.  The Court of Appeals acknowledged that ordinary witnesses testifying at a deposition usually do not receive payment.

The Court of Appeals then considered MCR 2.302(B)(4) which governs the discovery of expert opinions.  Specifically, MCR 2.302(B)(4)(c)(i) provides that unless manifest injustice would result, “the court shall require that the party seeking discovery under subrules (B)(4)(a)(ii) or (iii) or (B)(4)(b) pay the expert a reasonable fee for time spent in a deposition, but not including preparation time…”

The Court of Appeals noted that, unlike most experts, Dr. Radden “acquired facts” about Garvin during his treatment of Garvin, rather than in anticipation of litigation or for trial.  Furthermore, as an employee of a party to the litigation, Dr. Radden was not entitled to a fee for testifying on behalf of Spine Specialists.  The Court of Appeals found that while a party (or an employee of a party) with specialized knowledge may offer an expert opinion within his or her field, the Court Rules do not contemplate payment to a party offering an opinion on its own behalf.  In the present case, the Court noted that Dr. Radden clearly had a vested interest in the outcome of the case, unlike most “expert” witnesses.  The Court found that payment of a fee under MCR 2.302(B)(4) would also be improper in this case because a witness acting as an agent or representative of a party incurs no hourly costs.

The Court further found that MCL 600.2164, regarding court-approved witness fees as an element of taxable costs, was not implicated here.  That provision specifically exempts reimbursement for “witnesses testifying to the established facts” and applies “only to witnesses testifying to matters of opinion.”  The Court reasoned that if Dr. Radden testified to the facts surrounding his treatment of Garvin, spine Specialists would not be entitled to recover an expert witness fee.  And if Dr. Radden provided expert testimony, Spine Specialists would not be entitled to recover any costs because Spine Specialists never paid a fee to Dr. Radden for his testimony. 

The Court ultimately determined that as the sole owner of Spine Specialists and the physician who treated Garvin on Spine Specialists’ behalf, Dr. Radden was obligated to provide deposition testimony.  “Conditioning the acquisition of that knowledge on payment of a witness fee contravenes the concept animating Michigan’s discovery rules – that information should be easily obtainable in a process that does not encumber the parties’ abilities to use the tools provided by the rules.”  The Court reasoned that requiring payment to a party for that party’s deposition would constitute manifest injustice. 

 

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RIVALRY SEMINAR

The Rivalry Seminar will take place on
Friday, October 28th,
at the Kellogg Hotel & Conference Center in East Lansing, Michigan.

This is a complimentary seminar for our clients.

Click HERE  for a seminar agenda.

 Please contact Eileen Carty to register at ecarty@garanlucow.com or 248-641-7600.

 

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RIVALRY TAILGATE

MSU   v   MICHIGAN
October 29, 2016

Garan Lucow Miller will host a tailgate on Saturday, October 29, 2016
at the Dem Hall Field on the campus of Michigan State, beginning at 9:00 a.m. 

Fun! Food! Drink!  If you wish to attend please contact Eileen Carty at ecarty@garanlucow.com or 248-641-7600.

The game begins at noon.

 

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WINDY CITY SEMINAR

The Windy City Seminar will take place on
Thursday, November 10, 2016
at the Chicago Marriott Schaumburg.

This is a complimentary seminar for our clients.  Click here for the Agenda.

Contact Eileen Carty to register at ecarty@garanlucow.com or 248-641-7600.