The opinion of the court was delivered by: Joel Schneider United States Magistrate Judge
This matter is before the Court on plaintiff's "Motion to Compel the Deposition of Donald Krachman, M.D." [Doc. No. 57]. No opposition to the motion has been filed. The Court has exercised its discretion to decide plaintiff's motion without oral argument. See Fed. R. Civ. P. 78; L. Civ. R. 37.1(b)(3). For the reasons to be discussed, plaintiff's motion is GRANTED.
Plaintiff filed her complaint on April 10, 2009, on behalf of decedent, Walter Jorden (hereinafter "decedent"). [Doc. No. 1]. Plaintiff alleges defendants negligently treated the decedent. At the time of his death the decedent was participating in a Phase I Clinical Trial concerning the dosage and food effects of a new medicine for schizophrenia. Plaintiff alleges defendants Dr. Glass and CRI Worldwide, LLC, conducted the drug study.
Plaintiff's motion arises out of his request to take Dr. Krachman's deposition. On June 11, 2010, plaintiff served Dr. Krachman with a subpoena to be deposed on July 1, 2010 at defense counsel's office in Voorhees, New Jersey.*fn1 Dr. Krachman is alleged to be an independent contractor with CRI who treated the decedent the day he died. Dr. Krachman refused to appear for his deposition unless he was paid $500 per hour for his time.
Pursuant to Fed. R. Civ. P. 45, a party may serve a subpoena requiring a witness to appear for his or her deposition. As to witness fees, Rule 45(b)(1) requires that a witness be tendered the fees for one (1) day's attendance and the mileage allowed by law. The applicable statute reads:
§1821. Per diem and mileage generally; subsistence
(a)(1) Except as otherwise provided by law, a witness in attendance at any court of the United States, or before a United States Magistrate Judge, or before any person authorized to take his deposition pursuant to any rule or order of a court of the United States, shall be paid the fees and allowances provided by this section. ... (b) A witness shall be paid an attendance fee of $40 per day for each day's attendance. A witness shall also be paid the attendance fee for the time necessarily occupied in going to and returning from the place of attendance at the beginning and end of such attendance or at any time during such attendance. ...
(c)(2) A travel allowance equal to the mileage allowance which the Administrator of General Services has prescribed, pursuant to section 5704 of title 5, for official travel of employees of the Federal Government shall be paid to each witness who travels by privately owned vehicle. Computation of mileage under this paragraph shall be made on the basis of a uniformed table of distances adopted by the Administrator of General Services.
(3) Toll charges for toll roads, bridges, tunnels, and ferries, taxicab fares between places of lodging and carrier terminals, and parking fees (upon presentation of a valid parking receipt), shall be paid in full to a witness incurring such expenses. 28 U.S.C. §1821 (a)(1), (b), (c)(2) and (3). Rule 45 contrasts with Fed. R. Civ. P. 26(b)(4)(C) which addresses depositions of trial experts. Pursuant to this Rule a party is required to reimburse an expert's "reasonable fee" for his or her deposition.*fn2
The Court has not found a reported case from this District addressing the issue of the amount of witness fees that should be paid to a non-testimonial treating physician. However, the reported cases from around the country evidence a split of authority. In McDermott v. FedEx Ground Systems, Inc., 247 F.R.D. 58 (D. Mass. 2007), the Court summarized the two lines of cases. The first line of cases: reads the plain language of Rule 26 and 28 U.S.C. §1821, holding that a treating physician who is not designated as an expert witness is no different than any other fact witness and, thus, entitled only to the compensation scheme set forth in 28 U.S.C. §1821.
Id. at 59. These cases hold that a treating physician testifying about his personal consultation with a patient is not considered an expert witness and is only entitled to $40 per day plus mileage.
See, e.g., Mangla v. University of Rochester, 168 F.R.D. 137, 139 (W.D.N.Y 1996)("[s]ince Dr. Privitera is not being deposed as an expert retained for trial, he is entitled to $40 per day plus mileage and not his hourly rate"). See also Demar v. United States, 199 F.R.D. 617 (N.D. Ill. 2001); Baker ...