10 Fla. L. Weekly Supp. 428b
Insurance — Personal injury protection — Discovery — Depositions — Expert witness fees — Treating physician is not entitled to expert witness fees for deposition testimony
COMPLETE WELLNESS MEDICAL CENTER a/a/o KENZI WOLF, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2001-34906-COCI. February 24, 2003. Peter F. Marshall, Judge. Counsel: Kimberly Simoes, Daytona Beach. Sandra Kotur, Orlando.
ORDER
This cause having come on to be heard pursuant to the Plaintiff Complete Wellness Medical Center’s Motion to Compel Expert Witness Fee for Deposition of Dr. Steve Hayman and the Court having taken notice of the court file, having listened to the arguments of counsel and otherwise being fully advised of the premises; the Court makes the following finding upon which it enters this Order denying the Plaintiff’s Motion.
The Defendant’s insured, Kenzi Wolf, was involved in a motor vehicle accident that resulted in injuries to her person. She received treatment from the Plaintiff and assigned her benefits under her PIP policy to the Plaintiff. The Plaintiff submitted claims to the Defendant for the treatment rendered. The Defendant took reductions on the payment of those claims thereby resulting in this lawsuit.
The Defendant while conducting discovery took the deposition of Dr. Steve Hayman on January 28, 2003. The parties agree that Dr. Hayman was the treating physician provided by the Plaintiff for Kenzi Wolf. Subsequent to the deposition the Plaintiff advised the Defendant that Dr. Hayman would be submitting a bill for an expert witness fee for giving his deposition. The Defendant refused to pay the fee and this hearing resulted.
Rule 1.280(b)(4) Fla. R. Civ. P. discusses permissible discovery of facts known and opinions held by experts acquired or developed in anticipation of litigation or for trial. Subsection (b)(4)(C) of that same rule provides for the payment of a reasonable expert witness fee for time spent responding to discovery. The Court has no doubt that Dr. Hayman has the qualifications of an expert witness, however, it is his role in the context of this case that the Court must examine in making its determination of his entitlement to an expert witness fee.
The Defendant relies primarily on two appellate court cases for the proposition that Dr. Hayman is not considered an expert witness in this case and therefore is not entitled to charge an expert witness fee. Although neither case is directly on point regarding the payment of an expert witness fee, they are helpful in understanding how a witness in a case attains status as an expert. In Leonard Frantz, D.D.S. v. Carol Jean Golebiewski, 407 So.2d 283 (Fla. App. 3 Dist. 1981), the Court held that discovery of the testimony of a personal injury-plaintiff’s treating physician was not controlled by Fla. R. Civ. P. 1.280(b)(3), the expert witness-discovery rule. The treating physician was an ordinary witness not an expert. In Ryder Truck Rental, Inc., v. Gloria Perez, 715 So.2d 289 (Fla. App. 3 Dist. 1998), that Court reviewed the application of the one expert per specialty rule limitation on testimony at trial and determined that a treating physician should not be considered an expert witness. The Defendant not as controlling authority, but as persuasive authority has cited several trial court cases. Gregory Kurdian v. State Farm Mutual Automobile Insurance Company, 7 Fla. L. Weekly Supp. 694a (17th Judicial Circuit in and for Broward County 2000), provides a good analysis of whether or not a treating physician is entitled to an expert witness fee for giving a deposition. That Court cites Frantz and Ryder Truck in reaching the decision that a treating physician is an ordinary fact witness and not an expert entitled to charge an expert witness fee. The Kurdian Court also discusses that as a policy consideration it would not favor payment of an expert witness fee to a treating physician when the charges of the treating physician are in issue. Based upon the above referenced authority this Court finds that Dr. Hayman, the treating physician in this case, is not an expert witness and therefore not entitled to charge an expert witness fee for giving his deposition. It is therefore,
ORDERED and ADJUDGED that the Plaintiff Complete Wellness Medical Center’s Motion to Compel Expert Witness Fee for Deposition of Dr. Steve Hayman is DENIED.
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