12 Fla. L. Weekly Supp. 78a

Insurance — Personal injury protection — Discovery — Depositions — Expert witness fee — Treating physician is not expert witness entitled to fee for deposition testimony — Treating physician that is allied with plaintiff as its medical director and was directly responsible for care and treatment that will be subject of deposition is not entitled to expert witness fee for deposition testimony

PHYSICIANS INJURY CARE CENTER, INC., f/u/b/o SUMMER ROGAN, Plaintiff(s), vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant(s). County Court, 9th Judicial Circuit in and for Orange County. Case No. 2003-CC-5351-O. October 4, 2004. Jerry L. Brewer, Judge. Counsel: Robert D. Melton, Orlando. Eric Biernacki, Adams, Blackwell & Diaco, P.A., Orlando.

ORDER ON “DEFENDANT’S MOTION TO COMPEL THE DEPOSITION OF DR. I.L. COLVIN WITHOUT EXPERT WITNESSFEE” AND “PLAINTIFF’S MOTION FOR PROTECTIVEORDER CONCERNING THE DEPOSITION OFDR. I.L. COLVIN WITHOUT EXPERT WITNESS FEE”

Defendant, Progressive Express Insurance Company (hereinafter “Defendant”) filed a “Motion To Compel The Deposition Of Dr. I.L. Colvin Without Expert Witness Fee,” pursuant to Florida Rule of Civil Procedure 1.380(2). Plaintiff, Physicians Injury Care Center, Inc. (hereinafter “Plaintiff”), filed “Plaintiff’s Response To Defendant’s Motion To Compel Deposition Of Dr. I.L. Colvin Without Expert Witness Fee.” Plaintiff also filed “Plaintiff’s Motion For Protective Order Concerning The Deposition of Dr. I.L. Colvin Without Expert Witness Fee” and “Plaintiff’s Amended Motion For Protective Order Concerning The Deposition Of Dr. I.L. Colvin Without Expert Witness Fee,” pursuant to Florida Rule of Civil Procedure 1.280(c). All of the Plaintiffs’ filings are virtually identical.

FACTS

The case before the Court is a claim for PIP benefits under a policy of automobile insurance issued by Defendant to Summer Rogan, who assigned her rights under the policy to Plaintiff. (Compl., para. 4 & 8.) Plaintiff is a Florida corporation that is in the business of providing health care in Orange County, Florida. (Compl., para. 3.)

Defendant moves to compel the taking of the treating physician’s deposition without paying the physician an expert witness fee. In response, Plaintiff requests a protective order prohibiting the deposition before Defendant tenders the expert witness fee. The treating physician is also the medical director for Plaintiff.

Oral argument on the motions was heard on September 22, 2004.

Issue Number 1 — Is a treating physician an expert witness who is entitled to receive an expert witness fee for giving his deposition?

Answer — No.

Analysis — Florida trial courts are split on the issue of whether a treating physician is entitled to an expert witness fee for giving a deposition. Florida District Courts of Appeal have not specifically addressed this issue; however, the question has been certified to both the Fourth and the Fifth District Courts. See Orthopedic Care Specialists P.L. v. Progressive Express Ins. Co., 11 Fla. L. Weekly Supp. 52a (15th Jud. Cir., County Court, Sept. 30, 2003); First Care Chiropractic Ctr. v. Progressive Express Ins. Co., 10 Fla. L. Weekly Supp. 828b (9th Jud. Cir., County Court, Aug. 19, 2003).

A number of trial courts have held that a treating physician is an expert witness. These courts reason that a physician by virtue of his medical education and training falls within the definition of an expert witness set forth in Florida Rule of Civil Procedure 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.

Fla. R. Civ. P. 1.390(a). Therefore, because the physician is “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 . . . .,” the physician is entitled to receive an expert witness fee for giving a deposition pursuant to Rule 1.390(c). These courts reason that the payment of an expert witness fee is mandatory because Rule 1.390(c) says, “an expert or skilled witness whose deposition is taken shall be allowed a witness fee in such reasonable amount as the court may determine.” Fla. R. Civ. P. 1.390(c) (emphasis added).

Trial courts that have awarded an expert witness fee to a treating physician include: Dukett v. State Farm Auto. Ins. Co., 11 Fla. L. Weekly Supp. 437a (Fla. 18th Jud. Cir., County Court, Feb. 13, 2004); Progressive Express Ins. Co. v. Prof’l Med. Group, Inc., 10 Fla. L. Weekly Supp. 973a (Fla. 11th Jud. Cir., App. Div., Oct. 14, 2003); Brynes v. Progressive Consumers Ins. Co., 10 Fla. L. Weekly Supp. 1043c (Fla. 17th Jud. Cir., County Court, Sept. 12, 2003); M.M.T. Servs., Inc. v. Allstate Indem. Co., 10 Fla. L. Weekly Supp. 651 (Fla. 17th Jud. Cir., County Court, June 9, 2003), receded from and reversed by Integra Health Servs., Inc. v. Hollywood Pain Relief Ctr., 11 Fla. L. Weekly Supp. 153a (Fla. 17th Jud. Cir., County Court, Nov. 19, 2003).

Alternatively, other trial courts have held that a treating physician is not an expert witness, and therefore, is not entitled to an expert witness fee for giving a deposition. These courts reason that the issue is controlled by Florida Rules of Civil Procedure 1.280 and 1.390. These courts stress that Rule 1.280 permits discovery of facts known and opinions held by experts that were acquired or developed in anticipation of litigation or for trial. See Fla. R. Civ. P. 1.280(b)(4). The courts note that a treating physician gains information and develops an opinion in the ordinary course of caring for a patient, rather than in anticipation of litigation or for trial as specified in Rule 1.280. Under this analysis, a treating physician is a fact witness who is entitled to a regular witness fee for giving testimony.

Some of these courts have held that public policy considerations disfavor giving physicians special treatment by designating treating physicians as expert witnesses. One of these courts utilized a “slippery slope” argument stating that other professions meet the expert witness definition set out in Rule 1.390(a) and that designating one profession as expert witnesses would lead to requests for special treatment from members of other professions. See A-1 Mobile MRI, Inc. v. Allstate Ins. Co., 10 Fla. L. Weekly Supp. 460a (Fla. 17th Jud. Cir., County Court, April 28, 2003). Another court specifically addressed this issue in the context of a PIP claim and held that public policy considerations disfavored designating a treating physician as an expert witness when the treating physician was the real party in interest in the claim. Kurdian v. State Farm Mut. Auto. Ins. Co., 7 Fla. L. Weekly Supp. 694a (Fla. 17th Jud. Cir., County Court, June 29, 2000).

Trial courts that have held that a treating physician is not an expert witness and is not entitled to receive an expert witness fee for giving a deposition include: Drew Med., Inc. v. Progressive Express Ins. Co., 11 Fla. L. Weekly Supp. 342a (Fla. 9th Jud. Cir., County Court, Feb. 10, 2004); Orthopedic Care Specialists, P.L. v. Progressive Express Ins. Co., 11 Fla. L. Weekly Supp. 52a (Fla. 15th Jud. Cir., County Court, Sept. 30, 2003); First Care Chiropractic Ctr. v. Progressive Express Ins. Co., 10 Fla. L. Weekly Supp. 828b (9th Jud. Cir., County Court, Aug. 19, 2003); Rodriguez v. Gonzalez, 10 Fla. L. Weekly Supp. 429a (Fla. 11th Jud. Cir., County Court, April 14, 2003); Arias v. Metro. Prop. & Cas. Co., 9 Fla. L. Weekly Supp. 488b (Fla. 9th Jud. Cir., County Court, April 12, 2002).

As discussed below, the reasoning in the latter line of cases is persuasive; therefore the Court holds that a treating physician is not an expert witness under Rules 1.280 or 1.390(a), and therefore is not entitled to an expert witness fee pursuant to Rule 1.390(c).

The distinction between a treating physician and an expert witness was addressed in Frantz v. Golebiewski, 407 So.2d 283 (Fla. 3d DCA 1981). In Frantz, the issue was whether discovery of the testimony of a personal injury plaintiff’s treating physician is controlled by what is now Florida Rule of Civil Procedure 1.280(b)(4). The Frantz court noted that the rule did not require discovery of all “information and opinions held by experts,” but rather, only permitted discovery of information and opinions from expert witnesses that was “acquired and developed in anticipation of litigation or for trial, as in the case of an expert retained by counsel.” Id. at 285.

The Frantz court explained “[i]n contrast to an ‘examining physician,’ . . . a treating doctor. . .while unquestionably an expert, does not acquire his expert knowledge for the purpose of litigation but rather simply in the course of attempting to make his patient well.” Id. at 285. The court noted that the rule did not address an expert who obtained information because he was “an actor or viewer with respect to the transactions or occurrences that are part of the subject matter of the lawsuit. Such an expert should be treated as an ordinary witness.” Id. at 285. The court concluded that the plaintiff’s treating physician was an “actor” in the case, and a “viewer” of her condition, who should be “treated as an ordinary witness.” Id. at 285. See also Webb v. Priest, 413 So.2d 43, 45 (Fla. 3d DCA 1982) (held discovery of treating physician is not controlled by expert witness discovery rule).

Both parties rely on Ryder Truck Rental, Inc. v. Perez, 715 So.2d 289, 290 (Fla. 3d DCA 1998), which addressed a different but related issue, namely the determination of whether treating physicians are expert witnesses subject to a trial court’s “one expert per side” rule for limiting testimony at trial. The Ryder court relied on the reasoning in Frantz and held that treating physicians should not be classified as expert witnesses, but as ordinary fact witnesses for the purpose of the trial court’s rule. Id., citing Frantz, 407 So.2d at 285.¹

Florida courts have held that “similar to statutory construction rules, ‘the rules of civil procedure on a given subject are intended to be an integrated whole in which all provisions relating thereto are to be construed in light of each other.’ ” CPI Mfg. Co., Inc. v. Industrias St. Jack’s, S.A., 870 So.2d 89, 92 (Fla. 3d DCA 2003). Thus, the reasoning from the latter line of cases, which decide the issue by analyzing both applicable rules, appears to be more persuasive. This, taken in conjunction with the Frantz and Ryder decisions, suggests that the Court should follow those courts that have held that a treating physician is not an expert witness under Rules 1.280 and 1.390, and is therefore not entitled to receive an expert witness fee pursuant to Rule 1.390(c).

Issue Number 2 — Is a treating physician entitled to an expert witness fees for giving a deposition when the physician is allied with a party in the claim and was directly responsible for giving the medical treatment that will be the subject of his deposition?

Answer — No.

Analysis — The Third District Court of Appeal has held that a party’s employee who testifies about matters for which the employee had a direct and continuing responsibility is not entitled to receive an expert witness fee. Bystrom v. Mut. Of Omaha Ins., 566 So.2d 351, 352 (Fla. 3d DCA 1990) (held salaried employee of party/tax appraiser who testified about matters for which employee had a direct and continuing responsibility is not entitled to expert witness fee).

The Bystrom case was specifically relied upon by County Court Judge William Herring to recede from his decision in M.M.T. Servs. Inc. v. Allstate Indem. Co., 10 Fla. L. Weekly Supp. 651, which awarded an expert witness fee to a physician who was an employee of the plaintiff health care provider in a PIP action. See Integra Health Servs. Inc., v. Progressive Express Ins. Co., 11 Fla. L. Weekly Supp. 153a (Fla. 17th Jud. Cir., County Court, November 19, 2003). In Integra Health Services, Judge Herring noted:

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. . .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.

Id. Accordingly, in Integra Health Services, Judge Herring ruled that the treating physicians were all directly allied with the plaintiff health care provider and therefore were not entitled to expert witness fees. Id.

In the instant case, the treating physician is also the Plaintiff’s medical director, which evidences an alliance between the two. Furthermore, the treating physician testified by way of affidavit that he was directly responsible for the care and treatment given to Summer Rogan. (Irving L. Colvin, M.D. Aff.) Therefore, under Bystrom and Integra Services, it appears that the treating physician is not entitled to an expert witness fee.

This Court could decide the expert witness fee issue solely by relying on Bystrom and Integra Services without addressing the more complicated argument discussed under Issue Number 1. However, as this is a recurring issue with a split of authority at the trial court level, it is more appropriate to address all applicable arguments to give a more definitive answer in the Ninth Circuit.

Conclusion

This Court agrees with the analysis set forth above, the Court grants Defendant’s motion to compel the deposition of Dr. Colvin without payment of an expert witness fee and denies Plaintiff’s motion for a protective order to prevent the deposition of Dr. Colvin without tendering an expert witness fee.

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¹The Third District Court of Appeal later referred to Ryder in Lion Plumbing Supply, Inc. v. Suarez, 844 So.2d 768, 771 (Fla. 3d DCA 2003), a personal injury case concerning the limitations the trial court placed on the number of expert witnesses who could testify at trial. The Lion Plumbing court disagreed with the plaintiff’s assertion that the Third District had established a “black letter rule whereby the testimony of a treating physician is never considered for purposes of a one-expert-per-side limitation.” Id. at 771. Instead, the court held that when a treating physician offers medical opinions based on specialists’ reports or is used as a conduit to place specialists’ testimony before the jury, the defendant must have a fair opportunity to respond by presenting opposing testimony. Id. at 771. Thus, the holding in Lion Plumbing refined the holding in Ryder, but did not affect the holding in Franz. But see Progressive Express Ins. Co. v. Prof’l Med. Group, Inc., 10 Fla. L. Weekly Supp. 973a (Fla. 11th Jud. Cir., County Court, Oct. 14, 2003) (court relied on Lion Plumbing and held that the treating doctor who gave testimony exclusively concerning the medical care he rendered to the plaintiff was qualified as an expert witness and was entitled to an expert witness fee). It appears that the court in Progressive Express Insurance failed to appreciate the significance of the factual findings in Lion Plumbing, namely that the treating physician relied on the opinions of other experts to form his own opinion and acted as a conduit for getting the opinion of other expert physicians in front of the jury, which caused him to become an “expert witness.”

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