11 Fla. L. Weekly Supp. 746a
Insurance — Personal injury protection — Discovery — Depositions — Expert witness fee — Physician who was medical director of plaintiff and rendered medical treatment to insured, but who is no longer employed by and has no continuing responsibility to plaintiff at time of deposition, is entitled to expert witness fee for deposition testimony
ALL COUNTY MEDICAL CENTER, INC. a/a/o Irina Davydova, Plaintiff, vs. ALLSTATE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 03-08036 COCE 53. June 11, 2004. William W. Herring, Judge. Counsel: Mary-Margaret Warren, Wites, Kapetan & Friedland, P.A., Deerfield Beach, for Plaintiff.
ORDER PLAINTIFF’S MOTION FOR EXPERT WITNESS FEE FOR DR. JANET GOLDSTEIN
THIS MATTER, having come before the Court on May 19, 2004 on Plaintiff’s Motion for Expert Witness Fee for Dr. Janet Goldstein, D.C. and the Court having reviewed the motions, having heard argument of counsel and being otherwise advised in the premises,
It is ORDERED and ADJUDGED that Plaintiff’s Motion for Expert Witness Fee for Dr. Janet Goldstein, D.C, is Granted. The Court finds that Dr. Goldstein is not a party to this suit and is not an employee of Plaintiff. The Court finds that Dr. Goldstein is an expert entitled to an expert fee for deposition pursuant to Rule 1.390, Florida Rules of Civil Procedure. The Court in Bystrom v. Mutual of Omaha, 566 So.2d 351 (Fla. 3d DCA 1990) found the ultimate determination of whether or not a witness is entitled to an expert witness fee is not based on the substance or nature of the testimony that the witness is going to give at trial, but the status of the relationship between the party and the deponent. Id. See also Integra Health Services v. Progressive Express Insurance Company, 11 Fla. L. Weekly Supp. 153a (Fla. Broward County 2003). Regardless of the fact that the witness is going to give opinion testimony, the focal issue is whether the deponent is an employee, principal or owner of Plaintiff. Id. If the deponent is an employee, principal or owner of Plaintiff they are not entitled to an expert witness fee. Id.
The Court finds that Dr. Goldstein was medical director for Plaintiff and rendered treatment to the insured. However, Dr. Goldstein is no longer employed with Plaintiff and has no continuing responsibility to Plaintiff. The Court finds the determination to be made is whether or not the deponent is employed by Plaintiff at the time the deposition is taken and not whether or not the deponent was an employee of Plaintiff at the time treatment was rendered. If the deponent is not employee, principal or owner of Plaintiff at the time of the deposition, has no direct and continuing responsibility to Plaintiff, and is an expert pursuant to Rule 1.390(a), Florida Rules of Civil Procedure, then the deponent is entitled to an expert witness fee for deposition. Therefore, pursuant to Rule 1.390, Florida Rules of Civil Procedure; Bystrom v. Mutual of Omaha and Integra Health Services v. Progressive Express, Dr. Goldstein is entitled to an expert witness fee for her deposition testimony.
Dr. Goldstein has requested four hundred dollars ($400.00) per hour. There is no affidavit before the Court in opposition to Dr. Goldstein’s request for four hundred dollars ($400.00) per hour. Therefore, the Court finds this amount to be reasonable. The Defendant shall pre-pay four hundred dollars ($400.00) to Dr. Goldstein for the first hour of deposition and any time over one hour will be paid within a reasonable time period after the deposition.
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