13 Fla. L. Weekly Supp. 155a
Insurance — Personal injury protection — Discovery — Depositions — Expert witness fee — Treating physician is entitled to expert witness fee for deposition testimony — Despite insurer’s company policy of not holding depositions in physicians’ professional offices, treating physician may be deposed in his office if he instructs staff that he is not to be interrupted during scheduled time
KYANNE L. BOSTON, Plaintiff, vs. PROGRESSIVE AUTO PRO INSURANCE COMPANY, Defendant. County Court, 1st Judicial Circuit in and for Escambia County. Case No. 2004 SC 004111, Division V. December 5, 2005. Patricia A. Kinsey, Judge. Counsel: Keith W. Weidner, McKenzie, Taylor & Zarzaur, P.A., Pensacola, for Plaintiff. Edward Merrigan, for Defendant.
ORDER ON PLAINTIFF’S OBJECTION
At a hearing in open court on November 28, 2005, counsel for plaintiff appeared in the courtroom. Counsel for defendant appeared telephonically. At issue is whether or not Dr. Zulski, the treating physician in this PIP case, should be compensated for his time as an expert witness and whether or not he should be required to appear at a location other than his professional office for deposition.
The defendant insurance company seeks to depose Dr. Zulski at their court reporter’s office rather than in Dr. Zulski’s professional office. The only arguments proffered by counsel for moving the deposition from the doctor’s office to another location is that it is their “company policy” and that it is designed to keep from having the deposition interrupted unnecessarily.
Dr. Zulski wishes to be deposed in his office so that he might devote as much time as possible to the deposition in an expedited manner. He is willing to give up his lunch hour rather than wait to schedule the deposition at a time when he does not have patients previously scheduled. The court finds that “company policy” does not rise to the level of a legally sufficient reason which would compel Dr. Zulski’s presence outside his office. It just makes sense to save time and money by deposing the doctor in his office. Furthermore, if he is deposed in his office, he would have available all the resources to show any x-rays or other films, professional journals/reference materials which may come into question, and the complete patient file. Finally, the court could not find, nor did counsel provide, any case law or Rule which would cause the court to decide otherwise.
The other issue is whether or not Dr. Zulski should be considered an expert and compensated for his time. The defendant insurance company argues that they will not be asking any “opinion” questions and will be treating him as a “fact witness.” They argue that he is nothing more than the “treating physician” and is not entitled to expert witness handling in this case.
The Statewide Uniform Guidelines for Taxation of Costs in Civil Actions permits experts to be compensated for deposition and time spent prior to trial for the purpose of enabling a witness to express expert opinion. An expert is defined in Rule 1.390(a), Fla. R. Civ. Pro. 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. . .” In section (c) the Rule provides that an expert or skilled witness “shall be allowed a witness fee” and a hearing shall be conducted if the parties cannot agree on an amount.
Rule 1.280(b)(4)(C), Fla. R. Civ. Pro, provides that the court shall require the party seeking deposition pay the expert’s fee for time spent during discovery. It seems from a review of case law that it is well established that expert witnesses are entitled to compensation for time spent in deposition as well as time preparing for deposition. See for example, Bliss v. Brodsky, 604 So.2d 923 (Fla. 2d DCA 1992).
This PIP case concerns the defendant’s decision to cut-off plaintiff’s PIP chiropractic benefits based on an insurance medical exam (IME). The defendant disputes Dr. Zulski’s professional judgment in continuing to treat the plaintiff. He is not a witness to an automobile collision, but a treating physician who, based on his training and experience and examination of the plaintiff, made a professional judgment to render treatment. This is the essence of an expert witness giving expert testimony.
Therefore, since it appears there is no compelling reason to require Dr. Zulski to appear out of his office and it appears he is an expert witness and entitled to compensation for his time in deposition and preparation for the deposition, it is
ORDERED AND ADJUDGED that Dr. Zulski may be deposed in his office so long as he agrees that for the time scheduled for the deposition he will instruct his office staff that he is not to be interrupted.
FURTHER ORDERED that the defendant shall be responsible for payment of Dr. Zulski’s time. If the amount cannot be agreed upon, defendant shall schedule a hearing with notice to the plaintiff and Dr. Zulski and the court will determine a fair fee schedule.
* * *
