Montes v. Mai, No 1-08-2774 (Gallagher)
Facts: A non-party treating chiropractor refused to appear for a discovery deposition due to a dispute over his fee for testifying. The chiropractor requested $550 per hour with a two hour minimum and refused the attorneys offer of $300 per hour. The trial court held an in camera inspection of the chiropractor’s tax returns and set his fee at $66 per hour. The chiropractor refused to appear for his deposition pursuant to the court’s order and was held in contempt of court, thus prompting the appeal of the contempt finding.
Holding: The appellate court affirmed the trial court and held that the trial court’s calculation of $66 per hour was not an abuse of discretion. The appellate court further addressed an issue that was not raised at the trial level and determined that a chiropractor is a “physician” for purposes of Supreme Court Rule 204(c) requiring resonable compensation for deposition and trial testimony.
Filed in Trial Book Under: Supreme Court Rule 204; Experts – Fees
Commentary: This is an interesting case of a physician being a bit too greedy and getting his due. He should have taken the $300 per hour, which seems very generous for the chiropractic specialty. The “reasonable fee” requirement of Supreme Court Rule 204 has been an issue that I’ve seen a lot more problems with over the last few years and can be a real minefield for plaintiff’s attorneys in that we want to keep our expenses as low as we can but also fear the potential consequences of testimony provided by a treating physician that is angry over his fee being reduced. I’m glad to see that there is some case law addressing ways that a trial court can deal with the issue, but I also anticipate that many judges will be reluctant to go through the trouble of inspecting tax returns or other records to determine the reasonableness of a physician’s deposition fee schedule. The more likely and unintended result of this case is that both the plaintiffs’ and defense bar will cite this case as definitive authority that chiropractors should only receive $66 per hour in all cases!
This could be an issue that is ripe for a legislative solution similar to that seen with the charges for medical records. I heard a judge discussing this a while back that proposed a set hourly rate depending upon the specialty and then requiring the physician to proactively present a petition justifying a higher charge. Sort of like a rebuttable presumption. I can’t remember which judge proposed it so I can’t give credit where it’s due, but I like that idea a lot and think it would be very workable.