10 Fla. L. Weekly Supp. 563a
Insurance — Discovery — Depositions — Expert witness fees — Medical director of plaintiff medical provider, independent contractor technician who performed diagnostic testing on insured, and referring physician that ordered diagnostic testing are entitled to expert witness fees for their deposition testimony — Depositions set at home of medical director and billing clerk are moved to office of plaintiff’s attorney — Insurer that has set deposition of witness twice, once as billing clerk and again as owner of plaintiff, may only take deposition in one sitting and may not depose witness in county where she has no contacts — Depositions of non-party referring physician and technician must occur at their place of work or their choice of location to minimize business interruption
MARLIN DIAGNOSTICS & CHIROPRACTIC SERVICES (a/a/o Lakeshia Brown), Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE 02025820 (56). May 13, 2003. Linda R. Pratt, Judge. Counsel: Justin G. Morgan, Justin G. Morgan, P.A., Weston, for Plaintiff. Elad Hakim, Matt Hellman, P.A., Plantation, for Defendant.
ORDER ON PLAINTIFF’S MOTION TO COMPEL EXPERT FEE AND PLAINTIFF’S MOTION FOR PROTECTIVE ORDER
THIS CAUSE having come on to be beard by the Court on Plaintiff’s Motion For Protective Order and Plaintiff’s Motion To Compel Expert fee and the Court having heard argument of counsel, and being otherwise advised in the Premises, it is hereupon:
ORDERED AND ADJUDGED, that said Motions are hereby GRANTED and this Court states as supporting facts and law as follows:
I — PLAINTIFF’S MOTION TO COMPEL EXPERT FEE
1. Relevant to Plaintiff’s Motion to Compel Expert Fee, Defendant, Progressive Express Insurance Company, has scheduled the depositions of Dr. Kevin Marlin, D.C., Medical Director of Plaintiff, Dr. John Valente, D.C., the alleged referring physician and the alleged physician ordering the diagnostic test at issue, and Dr. Carla Catalan, D.C., the non-party independent contractor technician that performed the diagnostic test for Plaintiff.
2. The Defendant refuses to agree to pay the above-listed doctors any expert witness fee for their testimony.
3. Defendant refuses to pay any expert witness fee to the above-listed doctors, citing the “treating doctor exception,” to wit; Defendant cites in its’ support Ryder Truck Rental v. Perez, 715 So. 2d 289 (Fla. 3rd DCA 1981) and Frantz v. Golebiewsky, 407 So. 2d 283 (Fla. 3rd DCA 1981).
4. Florida Rule of Civil Procedure § 1.390(a) defines an expert witness as “a person duly and regularly engaged in the practice of a profession who holds a professional degree from a university or college and has had special professional training and experience or one possessed of special knowledge or skill about the subject upon which called to testify.”
5. This Court finds that the Appellate Courts have not considered Florida Rule of Civil Procedure § 1.390 as to whether a “treating physician” is entitled to a fee for testifying or sitting for a deposition.
[Editor’s note: Paragraphs 6 and 7 were deleted by Judge.]
8. This Court finds that non-party physicians, doctors, chiropractors, and trained medical personnel are entitled to an expert witness fee for depositions and testimony as long as their testimony concerns the subject matter of their expertise.
9. This ruling is in line and follows a change in position by this Court as outlined in Abbie Rubenstein v. Progressive Express Insurance Company, 10 Fla. L. Weekly Supp. 212a, Broward County, January 31, 2003 and OMI of Coral Springs, Ltd. (a/a/o Debra Fuller) v. Allstate Indemnity Company, Broward County, Florida, Case Number COCE 03-01876 (56), March 7, 2003. But see: A-1 Mobile MRI, Inc. vs. Allstate Ins. Co., Broward County, Fla., Case No. 02-5457COSO60 (April 28, 2003). See also: Demar v. U.S.A., 199 F.R.D. 617 (D. Ill. 2001).
10. In this matter, both parties agree that Defendant mistakenly set the deposition of Dr. John Valente, D.C., the alleged referring physician, and as such, Defendant will not take the deposition of Dr. John Valente, D.C., but will reschedule the deposition of the correct referring physician, if it so chooses.
11. As such, THIS COURT ORDERS that Dr. Kevin Marlin, D.C., Dr. Carla Catalan, D.C., and the applicable referring physician, are all entitled to an expert witness fee for their deposition and/or testimony.
12. Moreover, the parties are ORDERED to try to resolve the amount of the expert witness fee to be paid, however, if said negotiations fail, a Motion To Determine The Amount of Expert Witness Fee may be set for hearing.
II — PLAINTIFF’S MOTION FOR PROTECTIVE ORDER
13. Relevant to Plaintiff’s Motion For Protective Order, Defendant has set the depositions of Dr. Kevin Marlin, D.C., Medical Director of Plaintiff, Dr. John Valente, D.C., the alleged referring physician and the alleged physician ordering the diagnostic test at issue; Dr. Carla Catalan, D.C., the independent contractor technician that performed the diagnostic test for Plaintiff; Claudia Marlin, as billing clerk for Plaintiff; Claudia Marlin as owner of Plaintiff; and Lakeshia Brown, the injured accident victim and assignor of benefits.
14. Plaintiff has filed a Motion For Protective Order with this Court pursuant to Florida Rule of Civil Procedure § 1.280(c) which states that upon motion by a party . . . and for good cause shown, the court in which the action is pending may make any order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense that justice requires, including [relevant to this matter] “(1) that the discovery not be had; (2) that the discovery may be had only on specified terms and conditions; including a designation of the time or place; (4) that certain matters not be inquired into, or that the scope of the discovery be limited in certain matters.”
15. Defendant has set the depositions of Dr. Kevin Marlin, D.C., as medical director of Plaintiff, and the deposition of Claudia Marlin as billing clerk for Plaintiff, at their home in Broward County.
16. The parties have agreed to the locations of said depositions, therefore, it is ORDERED that the depositions of Dr. Kevin Marlin, D.C., Claudia Marlin, and any other employees of Plaintiff, will be conducted at The Law Offices of Justin G. Morgan, P.A., attorney for Plaintiff. Additionally, it is ORDERED that the depositions of Defendant’s employees be conducted at the offices of Matt Hellman, P.A., attorneys for Defendant.
17. Defendant has set the deposition of Claudia Marlin twice; once set as owner of Plaintiff, at her home in Broward County, and once as billing clerk of Plaintiff at a Court reporters’ office in Dade County. This Court ORDERS that Defendant may only take Claudia Marlin’s deposition in one sitting and it may not depose her in Dade County, has Claudia Marlin has no relevant contacts with Dade County.
18. Defendant has set the depositions of the non-party referring physician and the non-party independent contractor technician at court reporters’ offices in the respective counties of their place of business.
19. This Court finds in this case that the depositions of non-party physicians, doctors, chiropractors, and any trained medical personnel must occur at their place of work or their choice of location, so as to minimize any possible business interruption. As such, this Court Orders the depositions of Dr. Carla Catalan, D.C. and the applicable referring physician, to occur at their place of work if they so choose.
* * *
