17 Fla. L. Weekly Supp. 301b
Online Reference: FLWSUPP 1704SCHEInsurance — Personal injury protection — Discovery — Depositions — Treating physicians are not entitled to expert witness fees for deposition testimony
JOHN SCHENNA, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Brevard County. Case No. 05-2006-CC-013149. May 4, 2009. William T. McCluan, Judge. Counsel: John J. Futchko, Plantation, for Plaintiff. Velencia Persy Flakes, Maitland, for Defendant.
ORDER
This action was heard on the Defendant’s Motion to Compel Deposition Without Expert Witness Fee. Upon consideration of the evidence presented and the argument of counsel for the parties as well as for Gary Weiss, M.D. and Charles Theofilis, M.D. the court finds:
1. The Plaintiff claims to have been injured in an automobile crash on May 30, 2002. He filed this action on March 27, 2006, seeking personal injury protection benefits under his policy of automobile insurance with the Defendant. The only benefits in dispute are for reimbursement of bills he incurred for medical services provided him by Gary Weiss, M.D., and Charles Theofilis, M.D., The Defendant denies that the services were causally related to or necessary for treatment of injuries received in the crash.
2. The Defendant seeks to depose Doctors Weiss and Theofilis, who have refused to appear for deposition unless they are paid “expert witness” fees of $1200 and $1500 per hour respectively.
3. The Defendant contends that Doctors Weiss and Theofilis are treating physicians whose services rendered to and bills incurred by the Plaintiff are the sole and precise matters in controversy. The Defendant argues that Doctors Weiss and Theofilis are therefore predominately fact witnesses, rather that experts retained for the purpose of rendering expert opinions at trial, and are not entitled to expert witness fees.
4. Doctors Weiss and Theofilis contend, however, that as licensed physicians that they are regularly engaged in the practice of a profession, they hold professional degrees, have special professional training and experience and possess special knowledge or skill about the subject upon which they will be called to testify. As such, they argue they should be allowed a reasonable witness fee as expert or skilled witnesses, under Fla.R.Civ.P. 1.390(c).
5. It is clear that neither physician was retained by the Plaintiff as a classic expert witness only for the purpose of this litigation. Their testimony, whether at deposition or during trial, will be relevant as to whether the Plaintiff’s claimed injuries were causally related to the crash, and whether the services rendered by Doctors Weiss and Theofilis were necessary and reasonable for treatment thereof. Because this is a straightforward PIP action, the doctors will not be required to render opinions on issues such as permanency, disability, future medical bills and so forth. Some of their relevant testimony will be purely factual e.g. dates of treatment and complaints as related by the Plaintiff. Other relevant testimony may well be in the form of opinion, e.g. that the Plaintiff’s injuries were caused by the crash, and that the treatment rendered was medically necessary.
6. While there would appear to be no binding precedent directly on point on this issue, there are numerous opinions in support of both sides of this dispute. The decisions of Palm Beach County Judge Peter M. Evans in Orthopaedic Care Specialists v. Progressive Express Insurance Company, 11 Fla. L. Weekly Supp. 52a (Fla. Palm Beach County Ct. 2003) and Lohmann v. Progressive American Insurance Company, 13 Fla. L. Weekly Supp. 730a (Fla. Palm Beach County Ct. 2006) recite a number of these opinions. Judge Evans certified this issue to be one of great public importance in both opinions, apparently to no avail. In many of these decisions both awarding and denying an expert witness fee in PIP actions, the healthcare provider was also the plaintiff based on an assignment from the named insured. In this action there is no assignment and the healthcare providers are not parties. The doctors point out that in this action, therefore, the oddity of a party plaintiff demanding to be paid an expert witness fee to explain why he or she should prevail is avoided. On the other hand, the issues in a typical PIP case are virtually if not literally identical, whether the plaintiff is the named insured or the healthcare provider by virtue of an assignment. The only additional issue when the healthcare provider is also the plaintiff is whether there was indeed and assignment of the claim. It seems illogical to decide the entitlement of a treating physician to an expert witness fee on whether there was an assignment of the insured’s claim; the healthcare provider’s relevant testimony will be identical in either event.
Based on the foregoing IT IS HEREBY ORDERED AND ADJUDGED that Defendant’s Motion to Compel Deposition Without Expert Witness Fee is granted. As treating physicians in an action for personal injury protection benefits based on their charges for medical services rendered to the Plaintiff, Gary Weiss, M.D. and Charles Theofilos M.D. are not entitled to expert witness fees under Fla.R.Civ.P. 1.390(c).
