12 Fla. L. Weekly Supp. 768b
Insurance — Personal injury protection — Discovery — Depositions — Expert witness fee — Treating physician who is not party to insured’s PIP suit against insurer is entitled to expert witness fee for deposition testimony regarding injuries and treatment of insured
SUSAN C. JACOBS, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Clay County. Case No. 2003-2255-SC D. May 4, 2005. Richard R. Townsend, Judge. Counsel: David G. Candelaria and James J. Woodruff II, Farah, Farah & Abbott, P.A., Jacksonville. Nicholas J. Christopolis, Jacksonville.
ORDER ALLOWING EXPERT WITNESS FEE
This cause came on to be heard upon the Plaintiff’s Motion to Recover Reasonable Fee for Expert Witness Testimony, and from a review of the Court file and argument of Counsel, the Court finds:
1. The Plaintiff alleges that she sustained injuries in an automobile accident on December 29, 2002 and sought treatment from Dr. Thomas Hardin, D.O. for these injuries. The Plaintiff has filed suit against the Defendant, the Plaintiff’s insurance carrier for PIP benefits, alleging that the Defendant failed to make payments for no fault benefits for medical treatment provided by Dr. Hardin.
2. The Defendant subpoenaed Dr. Hardin to appear for a deposition on December 10, 2004 at the office of a Court Reporter in Jacksonville, Florida. Dr. Hardin appeared and gave expert testimony regarding the injuries and treatment of the Plaintiff.
3. Prior to the deposition, Counsel for the Plaintiff and Defendant agreed that the issue of expert witness fees would be resolved later.1
4. The Defendant refused to pay an expert witness fee for the deposition of Dr. Hardin.
5. Dr. Hardin is clearly an expert witness as that term is defined in Rule. 1.390(a), Florida Rules of Civil Procedure.
6. Dr. Hardin is not a party to this lawsuit.
7. A manifest injustice would result if a physician, who is not a party to the lawsuit, is not allowed an expert witness fee when the physician takes time away from the physician’s practice, has to travel to a Court Reporter’s office, and is required to give expert opinion testimony in response to questions by the Defendant’s attorney. An expert witness fee is contemplated in such cases by Rule 1.390(c), Florida Rules of Civil Procedure. The Rule also provides that the reasonable fee paid to an expert may be taxed as a cost if the Defendant prevails in the lawsuit.
8. The Court has considered all appellate cases cited by the parties and finds that each case is distinguishable and not dispositive of the issues raised herein. Traditionally, a treating physician is customarily paid a reasonable expert witness fee by the deposing party, and this Court is unaware of any District Court of Appeal decision that has held otherwise. However, this Court has previously found an exception to this general practice when the treating physician is the Plaintiff and is not requested by the deposing party to give expert opinions.
It is upon due consideration
ORDERED:
1. Dr. Thomas F. Hardin, D.O. is entitled to a reasonable expert witness fee for his attendance at the deposition on December 10, 2004. The Defendant shall pay this fee.
2. The Court reserves jurisdiction to establish the amount of the fee if the parties are unable to agree.
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1This Court inquired as to whether the Plaintiff, SUSAN JACOBS, was requesting the fee on behalf of Dr. Hardin, or whether Dr. Hardin was requesting the fee. Counsel for the Plaintiff advised the Court that he represents the Plaintiff in her claim against the insurance carrier for no fault benefits and also represents the physician in his claim for an expert witness fee.
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