11 Fla. L. Weekly Supp. 448a
NOT FINAL VERSION OF OPINION
Subsequent Changes at 12 Fla. L. Weekly Supp. 668a
Insurance — Personal injury protection — Discovery — Depositions — Expert witness fee — Treating physician who is corporate president and part owner of plaintiff medical provider, although an expert witness, is not entitled to deposition fee as fact witness regarding treatment of insured
PONTE VEDRA CHIROPRACTIC & P.T., INC., As assignee of MARC MATTESON, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 7th Judicial Circuit in and for St. Johns County. Case No. SP03-1652. Division 66. February 24, 2004. Charles J. Tinlin, Judge. Counsel: D. Scott Craig, Jacksonville. James C. Rinaman, Jacksonville.
ORDER ON PLAINTIFF’S MOTION TO RECOVER REASONABLE FEE FOR EXPERT TESTIMONY
This matter came before the Court for hearing upon Plaintiff’s Motion to Recover Reasonable Fees for the deposition of Richard C. Packo, D.C., pursuant to Florida Rules of Civil Procedure 1.390.
The Plaintiff has sued the Defendant for unpaid personal injury protection benefits as assignee for Marc Matteson, Defendant’s insured, for chiropractic care rendered by Dr. Packo. Dr. Packo is the corporate president and part owner of the Plaintiff’s corporation.
The Court finds that Dr. Packo is an expert under rule 1.390(a) which 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.
Subsection (c) goes on to state in pertinent part that:
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 Defendant argues that Dr. Packo is not entitled to an expert witness fee because as the treating physician who is aligned with the Plaintiff, (as president of the corporation and part owner thereof) he is merely a “fact” witness that would be testifying as to the treatment provided to Mr. Matteson. Further, Florida Rules of Civil Procedure 1.280 dictates that only “facts known and opinions held by experts. . . acquired or developed in anticipation of litigation or for trial” are discoverable from an expert witness and that the facts that Dr. Packo would be testifying to at the deposition were not “acquired or developed in anticipation of litigation or for trial.”
In Bystrom v. Mutual of Omaha Insurance, 566 So. 2d 351 (Fla. 3d DCA 1990), the Court disallowed expert witness fees where the expert witness was an employee of the prevailing party, the County Property Appraiser, who testified about matters for which he had a direct and continuing responsibility. Relying on Bystrom, the Court in Integra Health Services, Inc., f/k/a Hollywood Pain Relief Center v. Progressive Express Insurance Company, 11 Fla. L. Weekly Supp. 153a (Co. Ct. 17th Judicial Circ., Broward County, FL, Nov. 19, 2003) held that a treating physician who is also an employee of or principal of the Plaintiff provider is not entitled to expert witness fees for his deposition testimony.
The Defendant has additionally cited several Florida opinions that have held that treating physician are not entitled to expert witness fees for depositions regarding the treatment rendered. Gibson Chiropractic Office v. Progressive Express Insurance Company, 10 Fla. L. Weekly Supp. 907b (Co. Ct. 4th Judicial Circ., Duval County, FL, Sept. 8, 2003); A-1 Mobil MRI, Inc. v. Allstate Insurance Co., 10 Fla. L. Weekly Supp. 460a (Co. Ct.17 Judicial Circ., Broward Co., FL, April 28, 2003); Kurdian v. State Farm Mutual Automobile Insurance Company, 7 Fla. L. Weekly Supp. 694a (Co. Ct. 17th Judicial Circ., Broward Co., FL, June 29, 2000). See also Ryder Truck Rental, Inc. v. Perez, 715 So. 2d 289 (Fla. 3d DCA 1998) and Franz v. Golebiewski, 407 So. 2d 283 (Fla. 3d DCA 1981).
The Court having reviewed the applicable rules and case law presented by the parties and having heard argument finds that as the treating physician herein Dr. Packo, although an expert witness, is not entitled to an expert witness fee for his deposition as a “fact witness” regarding his treatment of Mr. Matteson.
WHEREFORE, it is
ORDERED AND ADJUDGED that the Plaintiff’s Motion to Recover Reasonable Fee for Expert Testimony by Dr. Packo is DENIED.
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