16 Fla. L. Weekly Supp. 595b
Online Reference: FLWSUPP 166CADEA
Insurance — Personal injury protection — Discovery — Expert witness fee — Treating physician who stands to benefit directly from PIP claim as owner and employee of medical provider is not entitled to expert witness fee for deposition testimony — Issue in determining whether expert is entitled to fee is whether expert is allied with party, not whether expert will give opinion testimony
ALTERNATIVE MEDICAL CENTER OF FT. LAUDERDALE, INC. (a/a/o ALINFORT CADEAU), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 08-08072 COCE 55. March 19, 2009. Sharon Zeller, Judge. Counsel: Adolfo Podrecca, Fazio, Discalvo, Cannon, Abers, for Plaintiff. Mary Valladares, Matt Hellman, P.A., Plantation, for Defendant.
ORDER DENYING PLAINTIFF’S MOTION FOR EXPERT WITNESS FEES/GRANTING DEFENDANT’S MOTION TO DISPENSE EXPERT WITNESS FEES
THIS CAUSE came before the Court on January 12, 2009, on Plaintiff’s Motion for Expert Witness Fees filed by ALTERNATIVE MEDICAL CENTER OF FT. LAUDERDALE, INC., and Defendant’s Motion to Dispense Expert Witness Fees filed by Defendant UNITED AUTOMOBILE INSURANCE COMPANY, and the Court having heard argument of counsel and being otherwise fully advised in the premises, it is hereby ADJUDGED:
Nature of the Case
The Plaintiff has sued the Defendant alleging that the Defendant has failed to pay certain Personal Injury Protection (“PIP”) benefits in accordance with the applicable insurance policy and Florida Stat. § 627.736 et seq. By its Complaint Plaintiff, Alternative Medical Center of Ft. Lauderdale, Inc., alleged that Defendant breached the insurance contract and therefore sought benefits for medical treatment rendered to Alinfort Cadeau, the insured, under an automobile policy issued by United. Plaintiff filed its Motion for Expert Witness Fees for the deposition of Dr. Zhenzhe Wu arguing that as the treating physician she is an expert and is entitled to fees for her deposition testimony. United Automobile Ins., Co. v. Cereceda & Associates, D.C., P.A., a/a/o Onica Blaize (Fla. 11th Cir. Ct. 2008).
In opposition Defendant filed its Motion to Dispense Expert Witness Fees for the deposition of Dr. Zhenzhe Wu arguing that Dr. Wu is directly allied with the party as an employee, as a principal, as an owner of Alternative Medical Center of Ft. Lauderdale, and as the treating physician who obtained her knowledge as part of her treatment and care of Alinfort Cadeau, and who did not acquire her expert knowledge for the purpose of litigation. Bystrom v. Mutual of Omaha, 566 So.2d. 351 (3rd DCA 1990).
Findings of Fact
The material and undisputed facts are that Dr. Wu is the treating physician of Alinfort Cadeau and whose charges for services and treatments are at issue in this action and is an owner and employee of Alternative Medical Center of Ft. Lauderdale.
Conclusions of Law
In Bystrom, an expert who is acting as Plaintiff’s employee is not permitted to collect expert witness fees. The Court stated that the ultimate determination of whether or not a treating physician is entitled to an expert witness fee is not the substance or nature of the testimony that the witness is going to give a the deposition, but rather it is the status of the party and of the Deponent, regardless of the fact that the witness is going to provide opinion testimony the focal issue is whether the Deponent is directly allied with the party, to wit are they an employee, principal, or owner, if so they are not entitled to an expert witness fee.
The only other case cited in Bystrom was Florida Department of Health and Rehab. Services (HRS) v. State, 330 So.2d 54 (Fla. 2d DCA 1976), where the State requested expert witness fees for the services of staff members of the State hospital. The trial court stated that, they denied the fees because they were “State employees testifying on State time in reference to matters for which the employees bear a direct and continuing responsibility”.
Here, Dr. Zhenzhe Wu’s role is that of the claimant’s treating physician and owner of Alternative Medical Center of Ft. Lauderdale, Inc., the Plaintiff in this cause of action. Dr. Wu as such, stands to benefit directly by this claim, and under is therefore not entitled to an expert witness fee.
The Court being otherwise fully advised in the premises, it is therefore, ORDERED AND ADJUDGED that: Plaintiff’s Motion for Expert Witness Fees for the deposition of Dr. Wu is hereby DENIED and Defendant’s Motion to Dispense Expert Witness Fees for the deposition of Dr.Wu is hereby GRANTED.
