12 Fla. L. Weekly Supp. 792a
Insurance — Personal injury protection — Discovery — Depositions — Expert witness fee — Treating physician who is employee of medical provider is entitled to receive expert witness fee for deposition testimony if he testifies about treatment of insured, but not if he testifies about management and operation of provider
SCHNIPPER CHIROPRACTIC CENTER, INC., (Malika M. Gordon), Plaintiff, vs. PROGRESSIVE AUTO PRO INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County, Civil Division Re. Case No. 502004SC009127XXXXMB. May 20, 2005. Susan Lubitz, Judge. Counsel: Shannon Mahoney, Shannon M. Mahoney, P.A., West Palm Beach, for Plaintiff. Matt Hellman, Matt Hellman, P.A., Plantation, for Defendant.
ORDER
THIS case came before the court for hearing on Defendant’s Motion To Dispense With Expert Witness Fees, with both counsel present. The court, having considered argument of counsel, memoranda and case law, finds as follows:
Defendant contends that Dr. Bryan Schnipper, the Plaintiff’s employee, is not entitled to receive an expert witness fee for testifying at deposition, as he is the treating chiropractor in this case and is, therefore, a fact witness. Defendant argues that only those experts who acquire knowledge of the facts and develop opinions in anticipation of litigation are entitled to receive expert witness fees for testifying at deposition.
Fla.R.Civ.P. 1.390(c) provides that an expert or skilled witness shall be paid a reasonable fee for testifying at deposition. Subsection (a) defines an 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.” The definition does not distinguish between a treating expert and an expert acquired to render an opinion for litigation.
This court disagrees with the county court rulings that cite Frantz v. Golebrewski, 407 So.2d 283 (Fla. 3rd DCA 1981) and Ryder Truck Rental, Inc. v. Perez, 715 So.2d 289 (Fla. 3rd DCA 1998), as authority for denying an expert witness fee to a treating physician. Neither case concerned the payment of expert witness fees for deposition authorized by R.Civ.P.1.390. Frantz addressed the issue of whether a statement from a patient’s treating dentist taken by the adverse party had to be disclosed to the patient under Fla.R.Civ.P. 1.280(b)(3), which requires disclosure of expert witness testimony developed in anticipation of litigation. Ryder distinguished treating physicians as fact witnesses from expert witnesses acquired for trial to reverse the trial court’s limitation of one expert for each speciality. The court held that the treating physician of the injured motorist should have been allowed to testify as a fact witness.
It is the nature of the testimony that determines whether or not the witness is entitled to receive an expert witness fee. If Dr. Schnipper testifies about his treatment of the insured, he is entitled to receive an expert witness fee. If, on the other hand, Dr. Schnipper testifies about the management and operation of the Schnipper Chiropractic Center, Inc., then he is not entitled to an expert witness fee. Therefore, it is
ORDERED AND ADJUDGED that Defendant’s Motion To Dispense With Expert Fees is hereby denied.
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