10 Fla. L. Weekly Supp. 836a
Insurance — Personal injury protection — Discovery — Depositions — Expert witness fee — Treating physician is entitled to reasonable fee for his deposition testimony
SCHNIPPER CHIROPRACTIC CENTER, INC., (As assignee of Venus Beauchant), Plaintiff, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, a foreign corporation, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County, Civil Division. Case No. 2003CC007645 RH. August 5, 2003. Cory J. Ciklin, Judge. Counsel: Joseph G. Murasko, North Palm Beach. Andrew A. Pineiro, Pineiro, Wortman & Byrd, P.A., Palm Beach Gardens.
ORDER ON PLAINTIFF’S MOTION FOR EXPERT WITNESS FEES
THIS MATTER came before the Court on the Plaintiff’s motion and the Court having heard argument of counsel; having reviewed the court file; and being otherwise fully advised in the premises, finds and decides as follows:
The issue presented to this Court for its consideration is rather intriguing. While the question has apparently been litigated in many county courts throughout the state, there has yet to be a single appellate decision regarding this specific issue.
As the Defendant correctly points out, certain Florida appellate courts have recognized a clear distinction between a physician witness testifying as the treating physician versus a witness called to testify as an expert and retained for the purpose of litigation. See Ryder Truck Rental, Inc. v. Perez, 715 So.2d 289 (Fla. 3rd DCA 1998); Frantz v. Golebiewski, 407 So.2d 283 (Fla. 3rd DCA 1981). In both cases, the Third District Court of Appeal opined that treating physicians or any other practitioner who has offered treatment must be classified as an “ordinary” fact witness. These cases unquestionably suggest that such treating physicians cannot be classified as expert witnesses in that while they are experts in the classic sense, they do not acquire their expert knowledge in anticipation of litigation.1
As the Defendant also aptly asserts, an “analogy can be drawn between the scenario of a treating physician testifying to justify their own actions in a PIP case and an attorney testifying to support their claim for attorney’s fees as the prevailing party at an attorney’s fee hearing.”
While the Defendant makes a thoroughly logical and rational comparison, the line of cases concerning attorneys’ fee testimony can be traced to an important Second District Court of Appeal case decided in 1964. In Lyle v. Lyle, 167 So.2d 256 (Fla. 2d DCA 1964), the District Court of Appeal reversed an attorneys’ fee award “solely on the question of the attorney fee allowed the wife’s attorney.” The court adamantly noted as follows: “We are not concerned with the amount of the fee, but the manner in which it was awarded.”
At the risk of being verbose, this Court quotes extensively from the Lyle opinion:
To put the question in its proper perspective we quote directly from a statement by the late justice Glenn Terrell in Baruch v. Giblin, 122 Fla. 59, 164 So. 831:
“There is but little analogy between the elements that control the determination of a lawyer’s fee and those which determine the compensation of skilled craftsmen in other fields. Lawyers are officers of the court. The court is an instrument of society for the administration of justice. Justice should be administered economically, efficiently, and expeditiously. The attorney’s fee is, therefore, a very important factor in the administration of justice, and if it is not determined with proper relation to that fact it results in a species of social malpractice that undermines the confidence of the public in the bench and bar. Itdoes more than that; it brings the court into disrepute and destroys its power to perform adequately the function of its creation”. (emphasis in original)
Nothing tends to quicken the pulse of the members of the bar faster than a good discussion on fees. Such discussions generally are spirited and lively, direct and to the point, and preponderate on the positive side rather than the negative. Lawyers can disagree on almost any subject to be mentioned but on the question of fees they usually stand united. Few lawyers practice law for pleasure; very few can afford to, and the subject of fees is rightfully of universal interest to the bar but the subject is often neglected and taken for granted despite its importance to those who earn their daily living in court.
In all litigation involving professional fees proof is required of the nature of, and the necessity for, the services rendered, and the reasonableness of the charge made therefor. In this respect the legal profession stands on the same plane with other professions.
As between a lawyer and his client the matter of the fee is one of contract between the two, but a fee to be allowed by the court is something else and must be proved as any other fact, and determined and allowed by the court in its judicial discretion. The reasonableness of the attorney’s fee is not the subject of judicial notice, neither is it to be left to local custom, conjecture or guesswork. Each award must be made on its own merits and should be justified by the circumstances in each particular case.
To those lawyers whose practice brings to them more than an occasional suit in which the fee is set by the court, the routine of giving testimony detailing the services and the proving of the value of the services may seem tedious, monotonous or even distasteful. Certainly the hearing of such proof by the trial judge day after day, week after week, may become a routine humdrum which does little, if anything, to add interest to the proceedings. However the parties to the suit, having their day in court, cannot be ignored; such testimony is not routine to them. Neither can the elementary rules of evidence be ignored. Trial judges are not so busy they cannot take time to hear such evidence; lawyers who treat such evidence lightly defeat their own purpose; and such evidence, while it is persuasive only, must be adduced else the court is without authority to make any award since the award must be based on competent evidence. Aside from the principle that the value of personal services is proven by expert witnesses, the self-serving nature of the testimony given by the attorney who performs the services precludes the court from making an award based solely on his testimony. The evidence in this cause is insufficient to meet the foregoing requirements. The award of attorney’s fees is reversed.
Clearly, Lyle suggests that there can be no “analogy between the elements that control the determination of a lawyer’s fee and those which determine the compensation of skilled craftsmen in other fields.” To permit a lawyer to be the sole expert as to the reasonableness of his or her fee, the Second District Court of Appeal held, has the potential of bringing “the court into disrepute.” Hence, while the Defendant’s analogy makes sense, lawyers, as a class of experts, cannot and should never be placed in the same category as any other expert or “skilled craftsmen” in any other field. Lawyers are officers of the court and the court is an instrument of society for the administration of justice.
After considering and discussing the Defendant’s various arguments, at least one factor which must be considered by this Court remains standing: Rule 1.390, Florida Rules of Civil Procedure. In no uncertain terms, this Rule provides, in pertinent part, as follows:
(a) Definition. The term “expert witness” as used herein applies exclusively to 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.
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(c) Fee. An expert or skilled witness whose deposition is taken shall be allowed a witness fee in such reasonable amount as the court may determine. The court shall also determine a reasonable time within which payment must be made, if the deponent and party cannot agree. All parties and the deponent shall be served with notice of any hearing to determine the fee. Any reasonable fee paid to an expert or skilled witness may be taxed as costs.
Obviously, this Court did not write or have any involvement with the promulgation of Rule 1.390, Florida Rules of Civil Procedure — but, needless to say, it must follow the Rule. While this Court may not completely agree with the applicability of this Rule as it relates to the instant issue, the Plaintiff has every right to invoke the Rule and every right to expect that this Court will require compliance.2
Accordingly, the treating physician in this case is entitled to a reasonable fee. When this litigation is concluded, the actual fee paid to the treating physician will become a taxable cost to the non-prevailing party.
Accordingly, it is thereupon ORDERED AND ADJUDGED as follows:
1. The Plaintiff’s Motion for Expert Witness Fees is granted.
2. In the event that the parties are unable to agree as to a reasonable amount to be paid to the treating physician, the Court shall, pursuant to Rule 1.390, Florida Rules of Civil Procedure, determine such amount.
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1Neither appellate decision concerns the specific issue presented in the instant matter. Ryder Truck addressed the lower court’s “one expert per specialty rule” and reversed the trial court by holding that the court abused its discretion in denying the appellant the right to elicit fact testimony from the appellee’s treating physicians on the issue of whether a permanent injury existed. Frantz focused on Rule 1.280(b)(3), Florida Rules of Civil Procedure and whether the discovery of the testimony of a personal injury plaintiff’s treating physician is controlled by the so-called expert witness discovery rule. The central issue in the case at bar concerns Rule 3.190, Florida Rules of Civil Procedure and its apparent mandate that any expert whose deposition is taken is entitled to a reasonable fee.
2Court Rules are regarded as having the “force of law.” Keen v. State, 103 So. 399 (Fla. 1925).
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