12 Fla. L. Weekly Supp. 155a
Insurance — Personal injury protection — Discovery — Depositions — Expert witness fee — Treating physician who is partial owner of plaintiff medical provider and who was denied expert witness fee prior to deposition did not become entitled to deposition fee after deposition based on opinion questions regarding treatment of insured — Question certified
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. November 4, 2004. Jerry L. Brewer, Judge. Counsel: Robert D. Melton, Orlando. Eric Biernacki, Adams, Blackwell & Diaco, P.A., Orlando.
ORDER ON PLAINTIFF’S MOTION FOR ASSESSMENTOF EXPERT WITNESS FEE
This cause having come on to be heard upon the Plaintiff’s Motion for Assessment of Expert Witness Fee and the Court having heard argument of counsel, and being fully advised in the premises,
The Court makes the following findings:
1. This Court entered an Order on October 4, 2004, denying the deponent, Dr. Irving Colvin any expert witness fees, pre-deposition, because the Court found he was a treating physician who did not perform his duties in anticipation of litigation, and therefore was not entitled to expert witness fees for his deposition.
2. That the defense attorney took the deposition of Dr. Irving Colvin in October 12, 2004, and asked questions concerning the doctors education, experience, and treatment of Summer Rogan.
3. That the attorneys for the respective parties have stipulated that among the questions asked of Dr. Irving Colvin, in his deposition, the defense attorney asked opinion questions of Dr. Irving Colvin concerning his treatment of Summer Rogan.
Based on the forgoing findings and based on this Court’s Order of October 4, 2004, it is hereby:
ORDERED AND ADJUDGED as follows:
1. The Court does hereby adhere to its Order of October 4, 2004 which denied expert witness fees to Dr. Irving Colvin, because he is the treating physician of the injured party and he is a partial owner of the plaintiff medical provider whose deposition was taken pursuant to FRCP 1.310 not FRCP 1.390.
2. This Court orders that Dr. Irving Colvin is not entitled to any expert witness fees for his deposition of October 12, 2004.
3. Furthermore, because this issue has never been raised in the Appellate Courts in the State of Florida concerning whether a doctor who is the treating physician is entitled to an expert fee when his deposition is scheduled by the Defendant insurance company, this Court certifies the following question to the Florida Fifth District Court of Appeals as one of great public importance pursuant to Florida Rules of Appellate Procedure 9.030(b)(4) and 9.160:
IS A MEDICAL DOCTOR ENTITLED TO EXPERT WITNESS FEES WHEN HIS/HER DEPOSITION IS TAKEN BY AN INSURER WHEN THE DOCTOR WAS THE TREATING PHYSICIAN AND A PARTIAL OWNER IN THE PROVIDER IN WHOSE NAME THE LAWSUIT IS BROUGHT?
IF NO;
CAN THE SAME DOCTOR BECOME ENTITLED TO AN EXPERT WITNESS FEE AFTER THE DEPOSITION BASED UPON QUESTIONS BY THE INSURER THAT INVOLVE THE OPINIONS OF THE DOCTOR REGARDING HIS/HER TREATMENT OF THE INJURED PARTY?
* * *
