17 Fla. L. Weekly Supp. 204a
Online Reference: FLWSUPP 1703RODRInsurance — Personal injury protection — Discovery — Depositions — Expert witness fee — Treating physician is entitled to expert witness fee for deposition testimony
HEALTHY SUNRISE MEDICAL a/a/o SARA GUERRA AS PARENT OF JALIMA RODRIGUEZ, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 08-05856 CC 25 (03). February 8, 2010. Jacqueline Schwartz, Judge. Counsel: Bernard H. Butts, Jr. Pedro Ortoz.
ORDER GRANTING PLAINTIFF’S MOTION FOR PROTECTIVE ORDER / MOTION TO COMPEL EXPERT WITNESS FEE
THIS CAUSE having come before the Court December 3, 2009, on Plaintiff’s Motion For Protective Order/Motion To Compel Expert Witness Fee, and the Court having reviewed the pleadings, heard argument of counsel, and otherwise being fully advised, the Court finds as follows:
STATEMENT OF MATERIAL FACTS
1. Plaintiff, Healthy Sunrise Medical a/a/o Sara Guerra as parent of Jalima Rodriguez, filed the instant action against Defendant United Automobile Insurance Company (“insurer”) seeking Personal Injury Protection (“PIP”) benefits pursuant to Section 627.736, Florida Statutes (2009) and an insurance contract issued by the insurer.
2. Jalima Rodriquez received medical treatment from Plaintiff, Healthy Sunrise Medical (“medical provider”) following an automobile accident.
3. Thereafter the medical provider submitted a claim to the insurer seeking payment of PIP medical services rendered. The insurer did not pay for the medical services.
4. When the insurer did not pay for the medical services provided to Jalima Rodriquez, the medical provider filed the instant Complaint. The insurer answered the Complaint raising several affirmative defenses. Discovery proceeded.
5. The insurer then sought to depose treating physician Dr. Juan Abreu. Dr. Abreu treated Jalima Rodriguez during the regular course of his professional practice.
6. Dr. Abreu is a chiropractic physician licensed by the State of Florida. In order to become licensed in Florida, Dr. Abreu obtained a professional degree from a medical school and is possessed of special knowledge about the subject he is being called to testify about (i.e. his treatment of his patient).
7. A Motion for Protective Order/Motion to Compel Expert Fee was thereafter filed by the medical provider requesting that the insurer pay an expert witness fee to Dr. Abreu for his deposition under Rule 1.390, Florida Rules of Civil Procedure.
8. The insurer opposes payment of an expert witness fee to Dr. Abreu contending that treating physicians do not acquire or develop their opinions in anticipation of litigation and therefore are not entitled to expert witness fees for their depositions.
ISSUE PRESENTED
Whether a treating physician is entitled to an expert witness fee for his or her deposition under Rule 1.390, Florida Rules of Civil Procedure.
CONCLUSIONS OF LAW
Although there is conflict among the various county courts that have considered this issue,1 this Court finds that applying a simple and logical analysis of Rule 1.390 requires that a treating physician be entitled to a fee for depositions. Rule 1.390 is plain and unambiguous. The rule, titled as “Depositions of Expert Witnesses,” states in relevant part:
“(a) Definition. The term “expert witness” as used herein applies exclusively to 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, or one possessed of special knowledge or skill about a subject upon which called to testify.
. . .
(c) Fee. An expert or skilled witness whose deposition is taken shall be allowed a witness fee in such reasonable amount as the court may determine. The court shall also determine a reasonable time within which payment must be made, if the deponent and party cannot agree. All parties and the deponent shall be served with notice of any hearing to determine the fee. Any reasonable fee paid to an expert or skilled witness may be taxed as costs.”
Fla. R. Civ. P. 1.390 (emphasis added). Simply, Dr. Abreu meets the criteria of an expert as defined by the Rule. Therefore the insurer must pay Dr. Abreu a fee for his deposition testimony.
However, “nothing is as simple as it seems,” and this Court has carefully considered the insurer’s arguments. Recognizing that complexity generally precedes simplicity,2 this Court has thoroughly reviewed the insurer’s position that prior case law and Rule 1.280 require a different result. As explained below, this Court concludes that the insurer’s reliance on the cited prior case law and Rule 1.280 is misplaced.
The insurer relies on the following cases in support of its position that an expert witness fee is not required: Fittipaldi USA Inc., v. Castroneves, 905 So. 2d 182 (Fla. 3rd DCA 2005); Ryder Truck Rental, Inc., v. Perez, 715 So. 2d 289 (Fla. 3rd DCA 1998); Frantz v. Golebiewski, 407 So. 2d 283 (Fla. 3rd DCA 1981). None of these cases, however, deal with the specific question of whether a treating physician is entitled to an expert witness fee for deposition under Fla. R. Civ. P. 1.390.
Fittipaldi USA Inc., 905 So. 2d at 182, was a breach of contract case. The issue presented was whether expert testimony from an attorney during a trial proceeding should be excluded because he was not listed as an expert witness. The Third District Court of Appeal held that the trial court erred in not excluding such testimony because the attorney, though a fact witness, was not listed as an expert.3 This case did not involve a rule of procedure and the Third District did not address the question of whether the trial court may decline to follow Rule 1.390.
The cases of Ryder Truck Rental, 715 So. 2d at 289 and Frantz v. Golebiewski, 407 So. 2d at 283 also do not involve application of Rule 1.390 and do not support the insurer’s position. Ryder Truck Rental dealt with the issue of whether the plaintiff’s treating physicians should be considered expert for the purpose of the trial court’s limitation of “one expert per specialty” rule at trial. The Third District held that the trial court abused its discretion in denying the defendant the right to obtain fact testimony from the plaintiff’s treating physicians on the issue of permanent injury. Ryder Truck Rental deals with evidentiary exclusions at trial unconnected to any rule of procedure. It has nothing to do with whether a deponent is entitled to a fee in a pretrial deposition, or a fee for an appearance at trial.
In Frantz, a dental malpractice case, the sole issue addressed by the appellate court concerned the applicability of the expert witness discovery rule, Florida Rule of Civil Procedure, Rule 1.280(b)(3). The plaintiff sought production of a sworn statement given to the defense attorney by the plaintiff’s treating physician which the defendant had taken without notice to the plaintiff’s counsel. The Third District held that the statement was protected from discovery by the work-product privilege because rule 1.280(b)(3) does not apply to all information and opinions held by experts, but only those “acquired and developed in anticipation of litigation or for trial.” Frantz v. Golebiewski, 407 So. 2d at 285. As in the other cases cited by the insurer, Frantz does not involve the taking of a deposition and does not address the issue of a treating physician’s entitlement to an expert witness fee under Rule 1.390.4
Likewise, the insurer’s reliance on Rule 1.280 is misplaced. Rule 1.280 only applies to experts who acquire or develop their opinions in anticipation of litigation or trial. Not all experts, such as treating physicians, acquire their opinions in anticipation of litigation. Therefore not all experts are subject to the discovery requirements of Rule 1.280. See Frantz, 407 So. 2d at 285. More importantly, Rule 1.280 does not govern whether a treating physician, who is an expert, must be a paid a fee for deposition. That determination can only be made by application of Rule 1.390. Rule 1.390 is the rule that specifically governs expert witness depositions and therefore is the rule that controls whether a treating physician is entitled to a fee for deposition. See CPI Manufacturing Co. Inc., v. Industrias St. Jack’s S.A., 870 So. 2d 89 (Fla. 3rd DCA 2003)(a more specific provision governs over a more general provision). By contrast, Rule 1.280 is entitled as “General Provisions Governing Discovery.” Section (b)(4) of Rule 1.280 is the general provision that applies to the discovery of facts and opinions by expert witnesses who acquire their opinions in anticipation of litigation or trial.
Finally, this Court has also carefully considered the insurer’s argument that this case should be governed by the reasoning in United Automobile Ins. Co. v. Comprehensive Health Ctr., Inc., 16 Fla. L. Weekly Supp. 1143a (Fla. 11th Jud. Cir. App. 2009). Comprehensive relied upon the cases of Fittipaldi USA Inc., Ryder Truck Rental, Inc., and Frantz, in holding that a treating physician is not entitled to an expert fee. The Comprehensive court reasoned: “Treating physicians do not obtain their information for the purpose of litigation, but rather in the course of making their patients well. As such, they are treated as ordinary fact witnesses and are not entitled to charge expert witness fees.”
Comprehensive is in direct conflict with Progressive Express Ins. Co. v. Professional Medical Group, Inc. a/a/o Jurgen Ugalde, 10 Fla. L. Weekly Supp. 973a (Fla. 11th Jud. Cir. App. 2003). Identical to this case, the issue in Progressive is “whether an insured’s treating physician is entitled to receive an expert witness fee for his deposition testimony regarding the medical care and treatment provided to insured.” As argued here, the insurer in Progressive argued that “[s]ince treating physicians do not acquire their expert knowledge for the purposes of litigation, but rather in the course of treating their patient, they should be considered ordinary fact witnesses.” Progressive, 10 Fla. L Weekly Supp. at 973a. In affirming the trial court’s finding that the treating physician is entitled to an expert fee, the Eleventh Circuit sitting in its appellate capacity looked to the language of Rule 1.390 and found that a treating physician meets the criteria of an expert under the rule. Additionally, the circuit panel determined that since Rule 1.390(c) contains the word “shall,” a fee must be paid to the expert for his deposition testimony. Progressive, 10 Fla. L Weekly Supp. at 973a. See also, United Auto. Ins. Co., v. Cereceda & Associates, D.C., P.A., a/a/o Onica Blaze, 15 Fla. L. Weekly Supp. 1048a (Fla. 11th Jud. Cir. App. 2008)(Trial court did not err in finding that treating physician is entitled to an expert fee for deposition under Fla. R. Civ. P. 1.390 where insurer sought to depose treating physician regarding medical necessity and relatedness of the treatments rendered).
In light of the conflict in the Eleventh Circuit, and based upon the analysis set forth herein, this Court declines to follow the reasoning in the recent Comprehensive opinion. Trial courts, although having wide discretion to administer their courtrooms, do not have the discretion to nullify the strict mandate of the Rules of Civil Procedure promulgated by the Florida Supreme Court. State v. Lott, 286 So. 2d 565 (Fla. 1973). The plain language of the rules promulgated by the Supreme Court of Florida is binding upon trial and appellate courts. State v. Battle, 302 So. 2d 783 (Fla. 3d DCA 1974). Simply, the plain language contained in Rule 1.390 requires that Dr. Abreu be paid an expert witness fee for his deposition testimony. See United Auto. Ins. Co., v. Cereceda & Associates, D.C., P.A., a/a/o Onica Blaze, 15 Fla. L. Weekly. Supp. at 1048a; Progressive, 10 Fla. L Weekly Supp. at 973a.
Accordingly, it is ORDERED and ADJUDGED that the Plaintiff’s Motion For Protective Order/Motion To Compel Expert Witness Fee is hereby GRANTED.
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1It appears that the majority of county court opinions reviewing this issue have concluded that payment of an expert witness fee to treating physicians who are deposed is required. See e.g., Rubenstein v. Progressive Express Ins. Co., 10 Fla. L. Weekly Supp. 212a (Fla. 17th Jud. Cir. 2003); Rivas Therapy v. Allstate, 9 Fla. L. Weekly Supp. 251a (Fla. 13th Jud. Cir. 2002); Non-Operative Spine, Pain, & Neuromuscular Center v. Allstate Ins. Co., 9 Fla. L. Weekly Supp. 880a (Fla. 20th Jud. Cir. 2002); Blanca Munoz v. United Automobile Ins. Co., 9 Fla. L. Weekly Supp. 196b (Fla. 11th Jud. Cir. 2001); Moreno v. United Automobile Ins. Co., 8 Fla. L. Weekly Supp. 848b (Fla. 11th Jud. Cir. 2001); Medical Evaluation Centers, Inc. v. Liberty Mutual Ins. Co., 8 Fla. L. Weekly Supp. 392a (Fla. 13th Jud. Cir. 2001).
2“Simplicity does not precede complexity, but follows it.” Alan J. Perlis, SIGPLAN Notices, Vol. 17, No. 9 (September 1982).
3Although not at issue, Fittipaldi recognized in dicta that “even a treating physician’s testimony could cross the line into expert testimony.” Fittipaldi, 905 So.2d at 186, n. 1.
4Interestingly, the Third District in Franz opines that the dentist treating physician would have been entitled to an expert fee in a deposition, had he not voluntarily agreed to provide the statement to defense counsel. See Frantz v. Golebiewski, 407 So. 2d at 285, n.2 (“As a practical matter, medical professionals almost invariably insist — as every witness has the right to do — upon a formal deposition and the payment of an appropriate witness fee before giving a statement to the party adverse to his patient.”)
