11 Fla. L. Weekly Supp. 353a
Insurance — Personal injury protection — Discovery — Depositions — Expert witness fee — Treating physician qualifies as expert witness entitled to fee for deposition testimony — $400 per hour is reasonable fee — Question certified: Is a treating physician, who has not been retained or specially employed by another party in anticipation of litigation or preparation for trial, entitled to an expert witness deposition fee under Florida Rule of Civil Procedure 1.390?
HOWARD J. RUDNICK, M.D., P.A., (Evan Gertz), Plaintiff, vs. PROGRESSIVE BAYSIDE INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County, South County Civil Division “RD”. Case No. 2002CC023109. January 30, 2004. Jonathan D. Gerber, Judge. Counsel: Marc Bebergal, Ellis & Ged, P.A., Boca Raton, for Plaintiff. Michael R. Davies, Green, Murphy, Wilke, Murphy & Spellacy, Fort Lauderdale, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION TO DETERMINE REASONABLE EXPERT WITNESS FEE FOR DEPOSITION AND/OR MOTION FOR PROTECTIVE ORDER
THIS CAUSE came before this Court on “Plaintiff’s Motion to Determine Reasonable Expert Witness Fee for Deposition and/or Motion for Protective Order.” This Court has reviewed the motion and the court file, has heard argument of counsel, and is otherwise fully advised in the premises.
Findings of Fact
Plaintiff accepted an assignment of personal injury protection benefits from an insured, and Plaintiff later sued the insurer to recover those benefits. Defendant notified Plaintiff that Defendant wanted to take the deposition of the insured’s treating physician. Plaintiff agreed to produce the treating physician for deposition on the condition that Defendant pay Plaintiff a reasonable expert witness fee pursuant to Florida Rule of Civil Procedure 1.390. Defendant objected to paying an expert witness fee on the ground that the treating physician is not an expert witness under Florida Rule of Civil Procedure 1.280.
Conclusions of Law
The parties have raised what appears to be an inconsistency in the Rules. It is undisputed that Rule 1.390, entitled, “Depositions of Expert Witnesses,” states, “An expert or skilled witness whose deposition is taken shall be allowed a witness fee in such reasonable amount as the court may determine.” However, the Rules appear to contain two different definitions of what constitutes an “expert witness.” Rule 1.280(b)(4) refers to an expert witness as a person who has acquired facts or developed opinions “in anticipation of litigation or for trial.” That definition would not necessarily include a treating physician because an insured presumably visits a treating physician for treatment, not in anticipation of litigation. Rule 1.280(b)(4)(A)(ii) states, in pertinent part, that a party may depose a person expected to be called as an expert witness at trial “in accordance with rule 1.390.” However, Rule 1.390(a) states, “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.” That definition would include a treating physician because that physician would possess special knowledge or skill about the subject upon which the physician testified.
The inconsistency which the parties have raised is not new. The parties have brought to this Court’s attention the opinions of several trial courts at the county and circuit level which have reviewed the issue of whether a treating physician should be treated as an “expert witness” for deposition fee purposes. Some courts have found that a treating physician is an “expert witness” for deposition fee purposes, and other courts have found that a treating physician should be treated as an ordinary witness for deposition fee purposes. The opinions vary from county to county, and even vary within counties. Compare Williams v. Allstate Indemnity Co., 9 Fla. L. Weekly Supp.713(Fla. Palm Beach Cty. 2002) (granting treating physician’s motion for protective order), with Simon v. Progressive Express Insurance Co., 10 Fla. L. Weekly Supp. 933a (Fla. Palm Beach Cty. 2003) (denying treating physician’s motion for protective order). Surprisingly, despite numerous conflicting opinions, the Florida Supreme Court has yet to amend the Rules to clarify or resolve this issue, and this Court could not locate any opinion of the Court or a district court of appeal which has resolved this issue.
The Third District Court of Appeal, in three cases, has distinguished between a treating physician and an expert witness on other issues. See Frantz v. Golebiewski, 407 So. 2d 283, 285 (Fla. 3d DCA 1981) (treating physician is to be treated as an ordinary witness for discovery purposes); Ryder Truck Rental, Inc. v. Perez, 715 So. 2d 289, 290-291 (Fla. 3d DCA 1998) (treating physicians should not have been classified as expert witnesses, but as ordinary fact witnesses not impeded by “one expert per specialty” rule imposed by trial court); Lion Plumbing Supply, Inc. v. Suarez, 844 So. 2d 768, 771 (Fla. 3d DCA 2003) (where treating general practitioner serves as conduit to place specialist testimony before jury, or offers medical opinions based on specialist reports, defending parties must have fair opportunity to respond by presenting opposing expert testimony). However, those cases did not address the present issue and, thus, those cases have little application here, if any.
The plain language of Rule 1.390(a)’s definition of “expert witness” has persuaded this Court that, for deposition fee purposes, a treating physician qualifies as an “expert witness” under the rule, in that a treating physician is “one possessed of special knowledge or skill about the subject upon which called to testify.” Bolstering this Court’s conclusion are the Committee Notes to the 1972 Amendment, which state, “This rule . . . was enacted . . . to make the presentation of expert testimony less expensive and less onerous to the expert and to admit the expert’s deposition at trial regardless of the expert’s residence.” (italics added here). The Committee Notes make clear the intention that parties should provide reasonable fees to encourage skilled witnesses to give discovery depositions so that the parties can use those depositions at trial in lieu of live testimony and avoid the greater time and greater expense associated with having a skilled witness testifying at trial.
Based on the foregoing, it is ORDERED AND ADJUDGED that “Plaintiff’s Motion to Determine Reasonable Expert Witness Fee for Deposition and/or Motion for Protective Order” is GRANTED. To take the deposition of the treating physician, Defendant shall advance to the treating physician a reasonable expert witness fee, which this Court determines to be $400 per hour.
However, based on the continuing split of opinion on this issue, and given the substantial likelihood of recurrence, this Court, pursuant to Florida Rule of Appellate Procedure 9.160, certifies to the Fourth District Court of Appeal, as an issue of great public importance: IS A TREATING PHYSICIAN, WHO HAS NOT BEEN RETAINED OR SPECIALLY EMPLOYED BY ANOTHER PARTY IN ANTICIPATION OF LITIGATION OR PREPARATION FOR TRIAL, ENTITLED TO AN EXPERT WITNESS DEPOSITION FEE UNDER FLORIDA RULE OF CIVIL PROCEDURE 1.390?
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