20 Fla. L. Weekly Supp. 931a
Online Reference: FLWSUPP 2009KEYEInsurance — Personal injury protection — Discovery — Depositions — Treating physician is expert witness entitled to be compensated for deposition testimony
D & S CHIROPRACTIC CENTER, INC., a/a/o Joanna Keyes, Plaintiff, v. LIBERTY MUTUAL INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 11-19708-CC-05 (08). May 2, 2013. Wendell M. Graham, Judge.
ORDER
Both parties have done a superb job presenting arguments and case law to the court. For the past almost ten years, I have awarded deposition fees to treating physicians. I have reviewed all of the cases on this subject, United Automobile v. John Hedden, 20 Fla. L. Weekly Supp. 117a, is well reasoned and most persuasive, concluding that no expert fee is due a treating physician in a PIP case as such a physician is a fact witness. I am concerned, however, that some of the rationale depends upon the efficacy of Comprehensive Health Center v. United Automobile Insurance Co., 56 So 3d 41 (3rd DCA 2010) [36 Fla. L. Weekly D54b]. There, in affirming our circuit court’s denial of expert witness fees for a treating physician, the Comprehensive court did not reach the merits of that decision, but rather simply declined to take second-tier cert review. The Third District Court of Appeal found that the 11th Judicial Circuit of Florida, sitting in its appellate capacity, had not departed from the essential requirements of the law in relying upon Frantz1. Indeed Frantz was the most recent district court of appeal case available to the appellate bench. However, from the perspective of a County Court Judge, my immediate appellate court has not resolved this issue. There remain, unreconciled, numerous cases holding contrary to Hedden, supra. Indeed, the DCA made it clear that it’s denial of second-tier cert should not be taken as it’s acquiescence with the lower court’s decision. Therefore, until such time as the 3rd DCA squarely rules on this issue, or our appellate division resolves its conflicting decisions, it is hereby
ORDERED AND ADJUDGED that the Defendant shall pay Plaintiff’s treating physician an expert witness fee for deposition.
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1Frantz v. Golebiewski, 407 So2d 283, 285 (Fla. 3d DCA 1981).
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