13 Fla. L. Weekly Supp. 362a
Attorney’s fees — Insurance — Personal injury protection — Discovery — Depositions — Provider is entitled to attorney’s fees and costs for securing protective order and prevailing on issue of entitlement to expert witness fee where insurer’s conduct in setting deposition of third-party radiologist at insurer’s attorney’s office at arbitrarily selected date and time and insurer’s intent to deprive radiologist of expert witness fee necessitated medical provider’s filing of motion for protective order, and insurer’s opposition to motion was unjustified in light of precedent in circuit — Provider’s counsel is also entitled to attorney’s fees and costs for litigating issue of entitlement to attorney’s fees
MILLENNIUM DIAGNOSTIC IMAGING CENTER, INC., as assignee for SIRA LOPEZ, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 03-2634 CC-24. December 28, 2005. Ada Pozo-Revilla, Judge. Counsel: Richard Shuster, Shuster & Saben, L.L.C., Miami, for Plaintiff. Michael Rudd, Michael P. Rudd & Associates, P.A., for Defendant.
ORDER DETERMINING PLAINTIFF’S ENTITLEMENT TO ATTORNEY’S FEES FOR SECURING EXPERT WITNESSFEES FOR ERIC GODREAU, M.D.
THIS CAUSE came before the Court on December 19, 2005 upon Plaintiff’s Motion To Determine Entitlement to attorney’s fees and costs for securing expert witness fees and a protective order for Eric Godreau, M.D.PROCEDURAL HISTORY
1. On May 13, 2005 the Defendant served a Notice of Taking Deposition Duces Tecum of Eric Godreau, M.D., which set the deposition of Dr. Godreau to take place at the office of the Defendant’s attorney, at 150 West Flagler Street, on July 25, 2005 at 2:00, p.m. The location, date and time for the deposition as set forth in the notice were not coordinated with Dr. Godreau’s office.
2. Eric Godreau, M.D. is a board certified radiologist, licensed to practice medicine in the State of Florida, who interpreted diagnostic imaging studies performed by Millennium that are the subject of litigation between the parties. Dr. Godreau is not a W-2 employee of Millennium but rather is a 1099-misc, independent contractor who regularly interprets imaging studies for Millennium.
3. On June 11, 2005 the Plaintiff served (and on June 15, 2005 filed) a Motion For Protective Order and Prepayment of Expert witness fees for Dr. Godreau that objected to the taking of Dr. Godreau’s deposition at a location away from his office, and a time chosen solely for defense counsel’s convenience. Further since the Defendant disputed Dr. Godreau’s entitlement to reasonable expert witness fees the motion set forth the legal basis for the entitlement to expert witness fees and sought prepayment of reasonable expert witness fees.
4. The Plaintiff served similar motions for protective orders in at least seven other cases that involved Defendant, Progressive, and that were being defended by the law firm of Michael P. Rudd and Associates, the cases in which substantially similar motions were filed for Dr. Godreau include:
Millennium a/a/o Jose Suarez v. Progressive 02-2370 CC24
Millennium a/a/o Danilo Canizo v. Progressive 03-3385 CC24
Millennium a/a/o Sira Lopez v. Progressive 03-2634 CC24
Millennium a/a/o Jennifer Myers v. Progressive 03-2944 CC24
Millennium a/a/o Corey Davis v. Progressive 03-3386 CC24
Millennium a/a/o Kesnel Delva v. Progressive 03-1694 CC24
Millennium a/a/o Jacky Fadeus v. Progressive 03-143 CC24
Millennium a/a/o Lisette Morales v. Progressive 04-838 CC24 [12 Fla. L. Weekly Supp. 80b]
5. On August 1, 2005, a hearing was held on the Motion for Protective order filed in the case of Millennium Diagnostic a/a/o Jennifer Myers, 03-2944 CC24. Following the hearing the Court entered an order that granted in part Plaintiff’s motion for protective order. Specifically the Court ordered that the deposition of Dr. Godreau take place at Dr. Godreau’s office, taken on a date and time coordinated with the physician. The Court further found that Dr. Godreau was entitled to expert witness fees of $500.00 per hour. The court declined to order prepayment of the expert witness fees and did not require that the multiple depositions the Defendant sought of Dr. Godreau be consolidated or scheduled back-to-back.
6. On August 9, 2005 counsel for the Plaintiff mailed to the Court proposed orders in the other seven cases (02-2370 CC24, 03-3385 CC24, 03-2634 CC24, 03-3386 CC24, 03-1694 CC24, 03-143 CC24, and 04-838 CC24) that were substantially similar to the order entered after hearing on an identical motion in the Millennium a/a/o Jennifer Myers matter. The seven proposed orders were accompanied by a letter requesting the Court enter orders on the remaining motions on an ex parte basis, and were accompanied by a copy of the order the Court had already entered in the Millennium a/a/o Jennifer Myers matter.
7. On August 10, 2005 the Defendant served Defendant’s Objection To Plaintiff’s Ex parte Order On Plaintiff’s Motion For Protective Order Re: Deposition of Eric Godreau, M.D. The Defendant’s objection asserted that the Court’s order regarding the deposition of Dr. Eric Godreau in a separate and distinct lawsuit, Millennium a/a/o Jennifer Myers, is not binding or controlling in the instant lawswuit involving claims related to the insured Sira Lopez.
8. On August 17, 2005 the Court entered on an ex parte basis the orders submitted by the Plaintiff on August 9, 2005.
9. Despite the Court having already entered seven ex parte orders granting motions for protective order, the Defendant continued to notice Plaintiff’s motions for protective order for hearing. The Court treated such hearings held on several dates in the various above-referenced cases as motions for re-hearing and denied Defendant’s request for any of the previously entered protective orders be vacated.
10. On or about October 17, 2005 the Defendant filed a notice of deposition of Eric Godreau, M.D., in yet another case, Millennium Diagnostic a/a/o of Lisvan Ferro v. Progressive, case number 02-2369 CC24. This case was not one of the eight cases referenced above and was not the subject of a prior protective order.
11. After the Defendant once again sought to depose Dr. Godreau, on a date and time not coordinated with Dr. Godreau, and once again disputed Dr. Godreau’s entitlement to expert witness fees the Plaintiff once again filed a motion for protective order for Dr. Godreau, bringing the total number of protective orders filed for this one physician to not less than nine.
12. On November 22, 2005 a hearing was held on the Motion for Protective order filed in the Millennium Lisvan Ferro matter (Case # 02-2369). At the hearing the Court inquired why it was necessary for Defendant to continuously relitigate the issue of Dr. Godreau’s entitlement to expert witness fees. Counsel for the Defendant responded that the Defendant would not agree to pay expert witness fees to Dr. Godreau without an order of the Court.
13. At the hearing Plaintiff’s counsel presented argument not only with respect to Dr. Godreau’s entitlement to expert witness fees, but also on entitlement to expert witness fees for prevailing on the motion for protective order and securing entitlement to expert witness fees.
14. Following the hearing the Court entered an order adjudicating that Eric Godreau, M.D. was entitled to expert witness fees of $500.00 per hour, and that the time and place of the deposition would be at the physician’s convenience. The Court further adjudicated that Plaintiff’s counsel is entitled to reasonable attorney’s fees for securing expert witness fees pursuant to Florida Rules of Civil Procedure Rule 1.280(c) and Rule 1.380(a)(4). The Court further directed. Upon being advised that Plaintiff had filed motions in eight above referenced cases seeking determination of attorney fee entitlement for prevailing on the protective order and securing expert witness fees, the Court further directed that Plaintiff’s counsel submit orders on fee entitlement on this case (02-2369) and the others involving the same issue.
15. On December 19, 2005 further argument was had in this matter concerning whether the Plaintiff is entitled to attorney’s fees for securing expert witness fees and a protective order in the PIP suit filed concerning services rendered to Sira Lopez.
FINDINGS OF FACT
16. Eric Godreau, is a board certified radiologist, and is licensed to practice medicine in the State of Florida. Dr. Godreau is a professional with advanced skills and specialized training and falls with the definition of an expert set forth in the Florida Rules of Civil Procedure.
ISSUES OF LAW
17. The issue presented to the Court is whether Plaintiff’s counsel is entitled to attorney’s fees for securing expert witness fees for Plaintiff’s radiologist.
18. Florida Rule of Civil Procedure Rule 1.310 gives both the person whose deposition sought and any party to the litigation the right to move for protective order. Florida Courts have consistently upheld the right of a party to move to quash subpoenas directed to non-party’s or move for protective orders for the benefit of the party or non-party witness. See e.g., Sunrise Shopping Center v. Allied Stores Corp., 270 So.2d 32, (Fla. 4th DCA, 1972).
The Florida Rules of Civil Procedure provide for motions for protective orders in Rule 1.280(c) which states:
19. 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.
19. The motion for protective order with respect to Dr. Godreau falls within the ambit of Rule 1.280(c) in that it sought that the discovery only be had under certain conditions, i.e., at a location, date and time convenient to the Dr. Godreau. Further to the extent the Defendant sought to take uncompensated depositions of Dr. Godreau in at least nine (9) separate cases such practices could cause significant harm to Dr. Godreau’s ability to practice his profession and earn his livelihood. As such the motion was necessary to protect Dr. Godreau from “oppression, or undue burden, or expense” as set forth in the Rule.
20. 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)
21. In the instant case Defendant’s conduct of setting Dr. Godreau’s deposition at the Defendant’s attorney’s office, at an arbitrarily selected date and time necessitated the motion for protective order. 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. Godreau 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.
22. 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 a non-party physician witnesses are entitled to expert witness fees for testimony concerning the care and treatment of the Defendant’s insured.
23. When faced with facts virtually identical to the instant case the Professional Medical Court 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.
24. The Defendant’s written opposition to the motion for protective order with respect to Dr. Godreau 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. The Defendant’s written opposition to the motion made no reference whatsoever to the Professional Medical or any county court opinions finding expert witness fee entitlement in similar matters.
25. 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, Progressive should exceptionally familiar with the ruling of Professional Medical. Progressive’s continued refusal to govern its litigation conduct in accordance the two year old mandate of Professional Medical makes its opposition to the Motion For Protective Order Re: Eric Godreau, M.D., unjustified.
WHEREFORE it is ORDERED and ADJUDGED:
26. 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 Eric Godreau, M.D., and for prevailing on the issue of Dr. Godreau’s entitlement to expert witness fees.
27. Shuster & Saben is entitled to attorney’s fees and costs for its time spent litigating the issue of its entitlement to attorney’s fees and costs.
28. Jurisdiction is reserved to determine the amount of the attorney’s fees and costs.
* * *
