11 Fla. L. Weekly Supp. 437a

Insurance — Personal injury protection — Discovery — Depositions — Expert witness fee — Treating physician — Motion for refund of deposition fee on grounds that insurer did not ask expert questions — Where court previously determined that insured’s treating physician is expert witness entitled to deposition fee, and insurer reserved two hours of physician’s professional time to depose him, what questions insurer chose to ask in deposition is immaterial to physician’s entitlement to fee — Attorney’s fees — Physician, as nonparty witness, is entitled to attorney’s fees for prevailing on motion for protective order and successfully defending against motion for return of expert witness fee

TRACY L. DUKETT, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. Circuit Court, 18th Judicial Circuit in and for Seminole County. Case No. 02-CA-232-15-W. February 13, 2004. Clayton D. Simmons, Judge. Counsel: Michael Brehne, Law Offices of Michael B. Brehne, P.A., Maitland, for Plaintiff. Norman A. Monroe, Moriarty & Monroe, Maitland, for Defendant.

ORDER FOR PAYMENT OF NON-PARTY WITNESS’S ATTORNEY’S FEES and ORDER DENYING DEFENDANT’S MOTION FOR RETURN OF EXPERT WITNESS FEES

THIS CAUSE came on for hearing January 28, 2004 on the Defendant’s motion for return of expert witness fees and the nonparty witnesses’ motion for attorney’s fees, the Court having heard argument of counsel and being otherwise fully advised in the premises, makes the following findings of fact and conclusions of law:FINDINGS OF FACT

1. This is an action filed by Tracy Dukett to recover UM benefits from a policy of insurance issued by Defendant.

2. The nonparty witness, Dr. Patrick St. Germain, is a licensed chiropractic physician who rendered chiropractic care to Plaintiff for injuries suffered in the accident at issue in this lawsuit.

3. Defendant set the deposition of Dr. Patrick St. Germain for October 10, 2002 at 9:30 a.m. This deposition was not coordinated with Dr. St. Germain or his private counsel Michael B. Brehne, Esquire.

4. Despite repeated requests, Defendant refused to prepay Dr. St. Germain an expert witness fee or recognize his entitlement to one without resort to the Court. Further, Defendant set the deposition time during the doctor’s clinic hours which interfered with his patient care.

5. As such, the non-party witness was forced to retain counsel to file motions for a protective order and to assess an expert witness fee.

6. A hearing was conducted before this Court and this Court granted the motion for protective order.

7. The Court determined Dr. St. Germain was an expert witness and was entitled to an expert witness fee for his deposition testimony.

8. This Court further ordered Defendant to coordinate the deposition and ordered prepayment of expert witness fees in the amount of $500.00 per/hr.

9. On November 7, 2002, Defendant took Dr. St. Germain’s deposition and paid Dr. St. Germain $1,000.00 for his testimony pursuant to the Court’s order.

10. After the deposition occurred, Defendant moved for return of the money based on the allegation that Defendant “did not ask Dr. St. Germain a single expert witness question.” Further, Defendant alleged that Dr. St. Germain appeared “without records related to the Plaintiff.”

11. The non-party witness filed a motion to recover attorney’s fees expended for prevailing on their motion for protective order pursuant to Fla. R. Civ. P. 1.280 and for defending against Defendant’s motion for return of expert witness fees.

12. It is these two motions that this order is directed.

CONCLUSIONS OF LAWI. DR. ST. GERMAIN IS AN EXPERT WITNESS PURSUANT TO FLORIDA LAW AND THIS COURT’S PREVIOUS RULING.

Fla. R. Civ. P. 1.390 (Depositions of Expert Witnesses) defines “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.” A doctor testifying about medical matters requiring the education and experience of a physician satisfies this requirement.

The Rule contains mandatory language requiring payment of expert witness fees for providing a deposition. “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.” Fla. R. Civ. P. 1.390.

Fla. R. Civ. P. 1.280 provides similar mandatory fee payment language:“Unless manifest injustice would result, the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under subdivisions (b)(4)(A) and (b)(4)(B) of this rule; and concerning discovery from an expert obtained under subdivision (b)(4)(A) of this rule the court may require, and concerning discovery obtained under subdivision (b)(4)(B) of this rule shall require, the party seeking discovery to pay the other party a fair part of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert.”

Florida courts are now routinely recognizing that the plain language of F.R.C.P. 1.390(a) and (c) requires the payment of expert witness fees to physicians for their deposition testimony. M.M.T. Services, Inc. (Raymond Becker) v. Allstate Indemnity Co., 10 Fla. L. Weekly Supp. 651a (17th Judicial Circuit in and for Broward County, Case No. 0216350 COCE 53. June 9, 2003).

In M.M.T., the court receded from its previous ruling in Kurdian v. State Farm Mutual Automobile Insurance Co., 7 Fla. L. Weekly Supp. 694a (Fla. 17th Jud. Cir. 2000) that the treating physician’s role in the case was that of a fact witness, not an expert witness, and therefore he was not entitled to payment of an expert witness fee. Similarly, other courts around this state have ruled that physicians, treating or otherwise, are expert witnesses as defined in Fla. R. Civ. P. 1.390 and shall be paid expert witness fees for their deposition testimony. See, Progressive Express Ins. Co. v. Professional Medical Group, Inc., 10Fla. L. Weekly Supp. 973a (11th Judicial Circuit Appellate Oct. 14, 2003.) (When seeking to depose the insured’s treating physician regarding the medical care and treatment provided to the insured, under Fla. R. Civ. P. 1.390, the treating physician clearly falls withinthe definition of an expert witness thereby entitling him to an expert witness fee); see also, Neuroscience and Spine Associates, P.L. v. Progressive Express Ins. Co., 11Fla. L. Weekly Supp. 70c (20th Judicial Circuit County Court Case No. 03-SC-5377 Nov. 10, 2003); Censory Neurodiagnostic Inc. v. Allstate Ins. Co., 11Fla. L. Weekly Supp. 49b (13th Judicial Circuit County Court Case No. 02-CC-23527 SC Oct. 31, 2003).

The Court earlier determined that Dr. St. Germain was an “expert witness” as defined by subsection (a) of 1.390 and as a matter of law was entitled to expert witness fees for testifying in the deposition set by Defendant.

Despite the Court’s earlier ruling, the Defendant now seeks a return of their expert witness fees because they claim to not have asked “expert” questions at the deposition; thus, Dr. St. Germain was merely a “fact” witness and not entitled to an expert witness fee.

Defendant reserved two hours of Dr. St. Germain’s professional time to depose him regarding the treatment rendered to Tracey Dukett, they were free to ask Dr. St. Germain about his diagnosis, care and prognosis of Tracey Dukett or anything else relevant to their defense of this claim. It is of no legal significance what questions Defendant chose to ask Dr. St. Germain once this Court determined he was an expert witness and entitled to an expert witness fee.

I find that by filing and prevailing on his motion for protective order and successfully defending against Defendant’s motion for return of expert witness fees, the nonparty witness is authorized to recover attorney’s fees that were reasonable and necessary as a result of Defendant’s conduct that necessitated the prior hearing and today’s hearing. Winn-Dixie Stores, Inc. v. Miles, 616So. 2d 1108 (Fla. 5th DCA 1993); see also, Fla. R. Civ. P. 1.280.

THEREFORE IT IS HEREBY ORDERED AND ADJUDGED as follows:

1. Defendant’s Motion for Return of Expert Witness Fee is hereby DENIED.

2. The Nonparty’s Motion for Attorney’s Fees is hereby GRANTED.

3. The attorney for the nonparty witness and Defendant shall cooperate in determining a reasonable fee and resort to this Court for an evidentiary hearing as to a reasonable amount for the fee if the parties cannot agree.

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