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October 16, 2016

COA holds that neither a party to litigation nor its representative is eligible to receive expert witness fee

An employee-owner of a party to litigation is not entitled to an expert witness fee when he is deposed by the opposing party, said the Michigan Court of Appeals in Spine Specialists of Michigan, P.C. v. State Farm Mutual Automobile Insurance Company, No. 327997. While a party (or employee of a party) with specialized knowledge may offer an expert opinion, Michigan’s court rules do not contemplate payment to a party offering an opinion on its own behalf.
 
Dr. Louis Radden, a neurosurgeon, solely owned Spine Specialists of Michigan, P.C., which brought an action against State Farm seeking payment for the care it provided to a patient who was injured in an auto accident. On its preliminary witness lists, Spine Specialists did not designate Dr. Radden an expert. When State Farm scheduled his discovery deposition, he refused to be deposed unless State Farm paid a fee of $5,000 for three hours of his testimony, and filed a “motion to enforce [his] expert witness fee.” The circuit court, reasoning that doctors might be reluctant to treat auto accident claimants if they could not recover a fee for their time spent being deposed, granted the motion and ordered that State Farm pay Dr. Radden $1,000 for the first one-and-a-half hours of the deposition and $250 for each additional 15 minutes.
 
The Court of Appeals disagreed. MCR 2.302(B)(4) governs pretrial discovery of “facts known and opinions held by experts . . . acquired or developed in anticipation of litigation.” Though the court rules do not define “expert,” the court relied on the general use of the word in the context and concluded that MCR 2.302(B)(4) applies to experts who are “third parties to the litigation” and who “examine facts from a distance, offer opinions, and have no financial stake in the outcome other than receiving a court-approved witness fee.” Here, Dr. Radden acquired facts about the patient during his treatment of the patient rather than in anticipation of litigation. Moreover, he owned Spine Specialists and was to serve as its spokesperson at trial.
 
Thus, the court concluded, to the extent that Dr. Radden’s testimony concerned the facts of his treatment of the patient, Spine Specialists is not entitled to recover an expert witness fee. If he did provide expert testimony, moreover, Spine Specialists would not be entitled to recover any costs, because it did not pay him for his testimony. The Court of Appeals accordingly reversed the circuit court’s decision to order that State Farm pay Dr. Radden an expert witness fee.
 

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