11 Fla. L. Weekly Supp. 153a
Insurance — Personal injury protection — Discovery — Depositions — Expert witness fee — Because the status of the party and deponent, not nature of the testimony the deponent will give, determines whether or not a treating physician is entitled to expert witness fee, physicians who are directly allied to plaintiff as employees or principals are not entitled to expert witness fees
INTEGRA HEALTH SERVICES, INC., f/k/a HOLLYWOOD PAIN RELIEF CENTER (a/a/o Vilma Lopez), Plaintiff, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 03-17249 COCE 53. November 19, 2003. William W. Herring, Judge. Counsel: Matthew Bavaro, Davie, for Plaintiff. Brian Tenzer, Hengber & Goldstein, P.A., Ft. Lauderdale, for Defendant.
ORDER ON DEFENDANT’S MOTION TO COMPEL DEPOSITIONS AND PLAINTIFF’S DEMAND FOR EXPERT WITNESS FEES
The Court having reviewed the file and after hearing the arguments of counsel, finds and rules as follows:
Defendant, PROGRESSIVE EXPRESS INSURANCE COMPANY (hereinafter referred to as “PROGRESSIVE”), set the depositions of Dr. Brian Weintraub and Dr. David Romano. Dr. Brian Weintraub is a treating physician of Vilma Lopez. Dr. David Romano did not provide any treatment to Vilma Lopez but was set for deposition in his capacity as owner of INTEGRA HEALTH SERVICES, INC., f/k/a HOLLYWOOD PAIN RELIEF CENTER (hereinafter referred to as “INTEGRA”). The Parties also agreed at the beginning of arguments before the Court that the deposition of Dr. Mustafa Agaogou would also be subject to the Court’s ruling. Dr. Agaogou may have been a treating physician of Vilma Lopez. It has been stipulated to that all of the deponents are employees or principals of the Plaintiff provider.
INTEGRA took the position that Dr. Weintraub, Dr. Romano and Dr. Agaogou are entitled to fees, as they are expert witnesses and INTEGRA objected to the taking of their depositions without PROGRESSIVE first paying them. PROGRESSIVE responded by filing a Motion to Compel the Depositions of Dr. Weintraub and Dr. Romano without payment of an expert witness fee.
This Court has previously ruled in M.M.T. Services, Inc. (Raymond Becker) v. Allstate Ind. Co., 10 Fla. L. Weekly Supp. 651a (17th Judicial Circuit in and for Broward County, Florida, June 9, 2003), that a treating physician is entitled to an expert witness fee based upon Florida Rule of Civil Procedure 1.390(a) which defines the term “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.” Fla.R.Civ.P. 1.390(a). This Court now recedes and reverses itself based upon the case of Bystrom v. Mutual of Omaha Insurance, 566 So.2d 351(Fla. 3d DCA 1990), a case that the Court did not have the benefit of in its prior ruling on this issue, only as to party-allied deponents as below defined.
The Bystrom court stated that the ultimate determination of whether or not a treating physician is entitled to an expert witness fee, is not the substance or nature of the testimony that the witness is going to give at the deposition, but rather, is the status of the party and of the deponent. Id. Regardless of the fact that the witness is going to give opinion testimony, the focal issue is whether the deponent is directly allied with the party; to wit, are they an employee, principal, or owner?; if so, they are not entitled to an expert witness fee.
The party in the instant litigation is the provider, INTEGRA. Therefore, this Court notes that Dr. Weintraub, Dr. Romano, and Dr. Agaogou are all admittedly directly allied with INTEGRA and, therefore, not entitled to an expert witness fee for their deposition testimony.
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