10 Fla. L. Weekly Supp. 651a
Insurance — Discovery — Depositions — Expert witness fee — Treating physician — Rule 1.390 requires expert witness fee be paid to non-party treating physician for deposition testimony
M.M.T. SERVICES, INC. (Raymond Becker), Plaintiff, vs. ALLSTATE INDEMNITY COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 02 16350 COCE 53. June 9, 2003. William W. Herring, Judge. Counsel: Harley N. Kane, Kane & Kane, Boca Raton. Jenifer Wolinsky, Hollywood. Dean M. Viskovich, Dean M. Viskovich, P.A., Pompano Beach.
ORDER RELATING TO EXPERT WITNESS FEES
This action was heard on May 8th, 2003 on motions filed by Dr. Michael Marks, a non-party to this litigation, and Allstate Indemnity Company, the Defendant. Dr. Marks filed a Motion for Protective Order/Motion to Compel Expert Fee. Allstate filed Defendant’s Motion to Compel the Deposition of Dr. Michael A. Marks Without Payment of Expert Witness Fee. The Court having reviewed the memoranda, file, and the arguments of counsel finds and decides as follows:
The motion filed by Dr. Marks is GRANTED while the motion filed by Allstate is DENIED. This Court has previously ruled in Kurdian v. State Farm Mutual Automobile Insurance Co., 7 Fla. L. Weekly Supp. 694a (Fla. 17th Jud. Cir. 2000) that “Dr. Gorenberg’s role in this case is that of a fact witness, not an expert witness, therefore he is not entitled to payment of an expert witness fee.” The Court now recedes and reverses itself from that holding. In Kurdian, this Court based its decision on two DCA cases Ryder Truck Rental v. Perez, 715 So.2d 289 (Fla. 3d DCA 1998) and Frantz v. Golebiewsky, 407 So.2d 283 (Fla. 3d DCA 1981). Both cases held in the context of civil procedure, that a plaintiff’s treating physician was not an “expert witness”. The Court felt that policy considerations did not favor the payment of an expert witness fee to a treating physician when the charges of the treating physician are at issue. The issues raised by Dr. Marks in his memoranda were not contemplated by this Court at the time of the Kurdian ruling. This Court has now reexamined the plain language of F.R.C.P. 1.390(a) and (c) as well as the Ryder and Frantz cases. Upon reconsideration of the issue, this Court comes to the conclusion that F.R.C.P. 1.390 is clear and requires an expert witness fee to be paid to Dr. Marks. Dr. Marks is clearly an “expert” as defined by subsection (a) of 1.390 and therefore “shall be paid an expert fee” under subsection (c) of 1.390.
Neither Ryder nor Frantz dealt with rule 1.390. Ryder Truck does not involve a rule of procedure at all. In Ryder Truck, the Trial Court ordered that each side would only be allowed one “expert witness per per specialty”. The defendant, Ryder, listed as witnesses the Plaintiff’s IME physicians. The trial court ruled that Ryder would not be permitted to call those witnesses because it would violate the court’s order limiting each side to “one expert per specialty”. The appellate court reversed holding that “the trial court abused its discretion in denying Ryder the right to elicit fact testimony from Perez’ treating physicians on the issue of whether Perez suffered from a permanent injury. Treating physicians do not acquire their ‘expert knowledge for the purpose of litigation but rather simply in the course of attempting to make their patient well.” Ryder, 715 So.2d 289 at 290, 291 citing Franz v. Golebiewski, 407 So.2d 283. The appellate court reversed holding it was an abuse to exclude the witness’ testimony at trial. The appellate court did not in any way indicate that the treating physicians were not “experts” as defined by Rule 1.390(a). Ryder deals with evidentiary exclusions at trial unconnected to any rule of procedure. It has nothing whatsoever to do with whether a deponent is entitled to a fee in a pretrial deposition.
Frantz was a petition for certiorari which dealt with whether discovery of a statement of the treating physician voluntarily given to the defendant was controlled by F.R.Civ.P. 1.280(b)(3). The appellate court ruled that it was not controlled by that procedural rule. In Frantz, a dental malpractice suit, the plaintiff’s subsequent treating dentist voluntarily gave a statement to the defense attorney. The plaintiff’sought production of the statement under F.R.Civ.P. 1.280(b)(3). The court held that the statement was protected from discovery by the work-product privilege because rule 1.280(b)(3) only applies to “information and opinions held by experts,” but only those “acquired and developed in anticipation of litigation or for trial,” Frantz at 285. Again, the Frantz court did not rule that the dentist was not an expert as contemplated by F.R.Civ.P. 1.390 but rather applied a “clear meaning” interpretation of F.R.Civ.P. 1.280 and required strict compliance with the rule. In fact, the Frantz court opines in footnote 2 of the opinion that the dentist was entitled to an expert fee had he not voluntarily agreed to a statement.
Therefore this Court finds that Dr. Marks shall be paid an expert fee for his deposition. The parties and Dr. Marks shall coordinate the deposition to a mutually agreeable date and time.
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