13 Fla. L. Weekly Supp. 496a
Attorney’s fees — Insurance — Personal injury protection — Discovery — Depositions — Non-party physician — Medical provider was entitled to file motion for protective order on behalf of non-party physician insurer sought to depose — Any deficiency in provider’s standing to seek protective order was cured when law firm representing provider was retained by non-party physician — Where motion for protective order was necessitated by insurer’s conduct of setting deposition at insurer’s attorney’s office at arbitrarily selected date and time and seeking to deprive physician of expert witness fee, opposition to motion was not justified in light of clear precedent in circuit holding that independent contractor physician is entitled to expert witness fee, and court granted relief sought in motion, provider’s attorneys are entitled to attorney’s fees and costs for securing protective order — Attorneys are also entitled to fees and costs for time spent litigating issue of entitlement to fees and costs
MILLENNIUM DIAGNOSTIC IMAGING CENTER, INC., as assignee for JOSE RIVERA, Plaintiff, vs. PROGRESSIVE SOUTHEASTERN INSURANCE CO., Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 05-326 SP-23 (1). February 13, 2006. Myriam Lehr, Judge. Counsel: Richard Shuster. Mark Mullen.
ORDER DETERMINING SHUSTER & SABEN, LLC’SENTITLEMENT TO ATTORNEY’S FEES FOR PREVAILING ON MOTION FOR PROTECTIVE ORDER AND SECURING EXPERT WITNESS FEE ENTITLEMENT FOR LUIS VERDECIA, M.D.
THIS CAUSE came before the Court on October 21, 2005 and January 23, 2006 upon Plaintiff’s and Dr. Verdecia’s Motions for Protective Order and Motions To Determine Expert Witness Fee of Luis Verdecia, M.D.
PROCEDURAL HISTORY
1. On May 2, 2005 counsel for the Defendant, wrote the Counsel for the Plaintiff requesting dates to depose Luis F. Verdecia, M.D., a non-party physician that treated the assignor and prescribed the diagnostic imaging services rendered by the Plaintiff.
2. Later in the day on May 2, 2005, Counsel for the Plaintiff responded to the Defendant, and requested that the Defendant secure three dates from Dr. Verdecia when both he and the Defendant’s counsel were available for deposition. Plaintiff’s counsel represented that it would accommodate defense counsel and Dr. Verdecia by scheduling the deposition on one of the three dates that fit the physician and defense counsel’s schedules. Counsel for the Plaintiff further requested that the Defendant’s counsel agree to take the deposition at Dr. Verdecia’s office and agree to Dr. Verdecia’s entitlement to expert witness fees.
3. On May 12, 2005 the Defendant served a notice of deposition of Dr. Verdecia that unilaterally scheduled Dr. Verdecia’s deposition to take place on June 13, 2005 at the Law Office of Michael P. Rudd & Associates, P.A., 150 West Flagler Street, Suite 1450, Miami, FL 33130.
4. On June 10, 2005 the Plaintiff filed a Motion for Protective Order that sought that the Court prohibit the deposition of Luis Verdecia, M.D., or in the alternative, enter a protective order requiring (1) that the deposition be taken at the physician’s office, (2) that the date and time of the deposition be coordinated with the physician, and (3) that the doctor be paid time he spends giving testimony. The Plaintiff’s motion for protective order included a claim for attorney’s fees for the time spent on the motion. Finally, Plaintiff’s counsel’s May 2, 2005 letter to defense counsel was attached to the motion.
5. On June 29, 2005 the Defendant served its Response To Plaintiff’s Motion For Protective Order. Paragraph ten (10) of Defendant’s response stated:
The Defendant is requesting that the Court deny Dr. Verdecia’s request for expert witness fees as the Defendant will be seeking his testimony as a factual witness who acquired his knowledge through his treatment of the claimant.
6. On October 21, 2005 a hearing was held on the Plaintiff’s Motion for Protective Order with respect to Dr. Verdecia. The Plaintiff asserted that since the Defendant, Progressive, paid in part for all of the Diagnostic services prescribed by Dr. Verdecia, the only issue in the case was whether the charges for the services were reasonable and customary in the community, and therefore there was no need for Dr. Verdecia’s deposition. The attorney present for the Defendant, Mark Mullen, contended that even though Progressive paid for the diagnostic imaging services it was still contesting that the services were medically necessary and therefore the deposition of Dr. Verdecia was relevant and necessary.
7. The Court declined to prohibit the deposition but granted the alternative relief sought by the Plaintiff by ordering that the deposition take place at Dr. Verdecia’s office. The Court further ordered that the date and time of the deposition be coordinated with Dr. Verdicia.
8. On the issue whether Dr. Verdecia was entitled to expert witness fees, the Defendant asserted that Plaintiff’s counsel did not have standing to act on behalf of the physician. The Plaintiff’s counsel argued that the Plaintiff had an interest in preventing the physicians that prescribe diagnostic services from being deposed for free because being subject to uncompensated depositions was a significant disincentive to prescribing diagnostic imaging services. The Plaintiff’s counsel asserted that regardless of whether he represented Dr. Verdecia, as counsel for the Plaintiff, he had the ability to bring such motion.
9. At the October 21, 2005 hearing the Court was further without any evidence by which to establish what would be a reasonable hourly rate for Dr. Verdecia’s testimony if it determined Dr. Verdecia was entitled to expert witness fees.
10. The fact that the Eleventh Circuit has previously resolved the issue of non-party physician entitlement to expert witness fees in PIP claims was brought raised by Plaintiff’s counsel, and the Court acknowledged that it follows the Eleventh Circuit’s ruling in Progressive Express Ins. Co. v. Professional Medical a/a/o Ugalde, 10 Fla. L. Weekly Supp. 973a, (Fla. 11th Cir. Ct. 2003) by stating “I have to tell you without going into this somewhat that I have ruled very much in favor of doctors getting their expert witness fees.” (See Transcript Page 9, lines 17-19.)
11. In the Court’s October 21, 2005 ruling the Court reserved ruling on the issue of Dr. Verdecia’s entitlement to expert witness fees and the reasonable hourly rate for Dr. Verdecia’s testimony. The Court further indicated to counsel that they should come back before the Court in the future to address the issues of entitlement to and the quantum of expert witness fees.
12. On November 10, 2005 the Plaintiff filed a motion entitled “Plaintiff’s Motion to Determine Expert Witness Fee of Luis Verdecia, M.D.,” that sought to determine the reasonable hourly rate for Dr. Verdecia’s testimony. On this same date, the Plaintiff also filed the Florida Department of Health’s practitioner profile that set forth Dr. Verdecia’s licensure, education, training, and medical privileges as filed by the physician with the Florida Department of Health.
13. On November 16, 2005 the Defendant served a notice of taking deposition of Dr. Verdecia that set Dr. Verdecia’s deposition to take place on January 25, 2006 at 2:00 p.m. at a facility where Dr. Verdecia practices medicine.
14. On November 21, 2005, the Defendant served “Defendant’s Motion To Strike/Deny Plaintiff’s Motion To Determine Expert Witness Fee Of Luis Verdecia, M.D., And Motion For Sanctions.” The Defendant’s motion alleged that the Plaintiff’s Motion to Determine Expert Witness Fee of Luis Verdecia, was an untimely motion for rehearing.
15. On January 5, 2006 Shuster & Saben, LLC served (and on January 6, 2006 filed) a Notice of Appearance for Luis Verdecia, M.D., to which was attached a signed retainer executed by Dr. Verdecia authorizing Shuster & Saben LLC, to appear for Dr. Verdecia for the limited purpose of securing expert witness fees, and authorizing Shuster & Saben, LLC, to seek attorney’s fees from the Defendant as awarded by the Court.
16. On January 5, 2006 Shuster & Saben, LLC served Dr. Verdecia’s Motion to Determine the Expert Witness Fee Amount of Dr. Verdecia. Dr. Verdecia’s motion was substantially similar to that filed by the Plaintiff on November 10, 2005. In support of the motion was a Notice of Filing of Dr. Verdecia’s affidavit that attested that when Dr. Verdecia was licensed to practice medicine for 29 years and licensed in Florida for 7 years. The affidavit also stated that Dr. Verdecia when he saw patients in the office he produced from $350.00 to $450.00 per hour.
17. On January 20, 2006 the Court denied Defendant’s Motion To Strike/Deny Plaintiff’s Motion To Determine Expert Witness Fee Of Luis Verdecia, M.D., and Motion For Sanctions.
18. On January 23, 2006 the Court heard oral argument on the issue of whether Dr. Verdecia was entitled to expert witness fees upon which the Court had previously reserved ruling. The Court also heard argument as to the reasonable hourly rate for Dr. Verdecia’s deposition testimony.
19. At the January 23, 2005 hearing Mark Mullen was not present and Jennifer Geer appeared for the Defendant. Ms. Geer asserted that the Defendant never disputed Dr. Verdecia’s entitlement to expert witness fees, but only contested the amount. Ms. Geer provided the Court with an order from another Miami-Dade County Court case wherein another County Court Judge awarded Dr. Verdecia only $250.00 per hour.
20. Plaintiff’s counsel countered that on the face of both the June 29, 2005, Response To Plaintiff’s Motion For Protective Order, and Defendant’s Motion To Strike/Deny Plaintiff’s Motion To Determine Expert Witness Fee Of Luis Verdecia, M.D., (served November 21, 2005) the Defendant contested entitlement to expert witness fees, and similarly contested entitlement at both prior hearings.
21. On January 23, 2005 the Court entered an order determining that Dr. Verdecia was entitled to expert witness fees, determined that reasonable hourly rate for his deposition to be $350.00 per hour, and reserved on the issue of whether Shuster & Saben, LLC was entitled to attorney’s fees for the time it spent on the motions.
FINDINGS OF FACT & LAW
ISSUE I: STANDING
22. The Plaintiff contends that as a party it is entitled to file a motion for protective order on behalf of a non-party witness.
23. The Florida Rules of Civil Procedure provide for motions for protective orders in Rule 1.280(c) which states:
(c) Protective Orders. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending may make any order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense that justice requires, including one or more of the following: (1) that the discovery not be had; (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters; (5) that discovery be conducted with no one present except persons designated by the court; (6) that a deposition after being sealed be opened only by order of the court; (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; and (8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court. If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery. The provisions of rule 1.380(a)(4) apply to the award of expenses incurred in relation to the motion.
24. By its terms, Rule 1.280(c) provides that a Motion For Protective Order can be filed by a party OR from whom the discovery is sought. The defendant’s contention that only Dr. Verdecia could challenge a subpoena to or notice of deposition of Dr. Verdecia is erroneous.
25. If as the Defendant contends Shuster & Saben, LLC lacked standing to seek a protective order on October 21, 2005, once the firm was retained by Dr. Verdecia any deficiency with respect to standing was cured and the issue of standing became moot.
26. In Kivi v. Nationwide Mut. Ins. Co., 695 F.2d 1285, 1288 (11th Cir. 1983) a federal judge applying Florida law held that an assignment obtained one day before trial was sufficient to convey standing. As such, a retainer executed prior to the January 23, 2005 hearing is sufficient to vest Shuster & Saben, LLC as counsel for Dr. Verdecia with the authority to act on his behalf.
ISSUE II: ENTITLEMENT TO ATTORNEY’S FEES
27. The award of attorney’s fees for the filing of a Rule 1.280(c) motion for protective order is governed by Rule 1.380(a)(4) which provides:
(4) Award of Expenses of Motion. If the motion is granted and after opportunity for hearing, the court shall require the party or deponent whose conduct necessitated the motion or the party or counsel advising the conduct to pay to the moving party the reasonable expenses incurred in obtaining the order that may include attorneys’ fees, unless the court finds that the opposition to the motion was justified or that other circumstances make an award of expenses unjust. If the motion is denied and after opportunity for hearing, the court shall require the moving party to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion that may include attorneys’ fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust. If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred as a result of making the motion among the parties and persons. (Emphasis Added)
28. In the instant case Defendant’s conduct of setting Dr. Verdecia’s deposition at the Defendant’s attorney’s office, at an arbitrarily selected date and time necessitated the motion for protective order.
29. Pursuant to Rule 1.390(c), “An expert or skilled witness whose deposition is taken shall be allowed a witness fee in such reasonable amount as the court may determine.” To the extent the Defendant sought to deprive Dr. Verdecia of an expert witness fee in violation of Rule 1.390(c) the Defendant’s conduct similarly necessitated the filing of a motion for protective order.
30. The issue of whether a non-party physician witness is entitled to expert witness fees for testifying in PIP claim was unequivocally resolved by the Eleventh Circuit Court in Progressive Express Insurance Co. v. Professional Medical Group a/a/o Jurden Ugalde, 10 Fla. L. Weekly Supp. 973a, (Fla. Dade Cir. Ct. 2003) wherein the Court ruled that non-party physician witnesses are entitled to expert witness fees for testimony concerning the care and treatment of the Defendant’s insured.
31. When faced with facts virtually identical to the instant case, the Court in Professional Medical a/a/o Uglade affirmed a protective order determining an independent contractor physician was entitled to expert witness fees in a PIP suit filed by a medical provider utilizing the physician’s/contractor’s services.
32. The Defendant’s written opposition to the Motion for Protective Order with respect to Dr. Verdecia cited county court cases denying expert witness fees that were from other counties and cases from Miami-Dade that were overturned by the 11th Circuit in Professional Medical a/a/o Uglade. The Defendant’s written opposition to the motion made no reference whatsoever to Professional Medical a/a/o Ugalde or any county court opinions finding expert witness fee entitlement in similar matters.
33. In Circuits where the case law concerning physician entitlement to expert witness fees is unsettled, the opposition to Plaintiff’s motion might be justified. In the Eleventh Circuit, under the principal of stare decisis, this Honorable Court must abide by precedents set by the 11th Circuit (in its appellate capacity), which include its ruling in Professional Medical. Since Progressive, the Defendant in the instant case, was the Defendant in Professional Medical a/a/o Uglade, Progressive should be exceptionally familiar with the ruling of the Professional Medical a/a/o Uglade Court. Progressive’s continued refusal to govern its litigation conduct in accordance with the two-year old mandate of Professional Medical a/a/o Uglade makes its opposition to Dr. Verdecia’s claim for expert witness fees unjustified.
34. This Court is mindful of the fact that the attorneys for the Plaintiff and Dr. Verdecia were required to come to Court three times and had to file multiple motions and notices to secure expert witness fees for Dr. Verdecia. If Dr. Verdecia was placed in the “Catch-22” of submitting to uncompensated depositions or spending unrecoverable sums on legal counsel, his right to expert witness fees would become a hollow, illusory protection.
35. In the Court’s October 21, 2005 order the Court granted a substantial portion of the relief sought by the Plaintiff in that the Court ordered that the deposition of Dr. Verdecia take place at Dr. Verdecia’s office and take place at a date and time coordinated with the physician. The Court also reserved on a substantial portion of the relief sought in that it did not immediately adjudicate the issue of entitlement to expert witness fees.
36. The combined result of the Court’s October 21, 2005 and January 23, 2006 rulings is that the Court has granted the relief sought in the motion for protective order. As such pursuant to Rules 1.280(c), and 1.380(a)(4), the attorneys that filed the motion for protective and litigated the above-referenced motions are entitled to reasonable attorney’s fees and costs to be paid by the Defendant.
WHEREFORE it is ORDERED and ADJUDGED:
37. Pursuant to Rule 1.280(c) and Rule 1.380(a)(4) the law firm of Shuster & Saben is entitled to reasonable attorney’s fees and costs for securing a protective order for Luis Verdecia, M.D. and for prevailing on the issue of Dr. Verdecia’s entitlement to expert witness fees.
38. Shuster & Saben, LLC is entitled to attorney’s fees and costs for its time spent litigating the issue of its entitlement to attorney’s fees and costs. This order on Shuster & Saben’s entitlement is independent of the ultimate outcome of the underlying P.I.P. suit.
39. Jurisdiction is reserved to determine the amount of the attorney’s fees and costs.
* * *
