20 Fla. L. Weekly Supp. 919c
Online Reference: FLWSUPP 2009GRANInsurance — Personal injury protection — Discovery — Depositions — Treating physician is expert witness entitled to be compensated for deposition testimony
JOHN GRANONE, P.A., Plaintiff, vs. STAR CASUALTY INSURANCE CO., Defendant. County Court, 6th Judicial Circuit in and for Pasco County. Case No. 51-2012-SC-000493WS, Division S. June 21, 2013. Paul E. Firmani, Judge.
ORDER
THIS MATTER having come before the Court on June 13th, 2013 upon the Defendant’s Motion for Reconsideration and the Court having considered the Motion well as the arguments of the parties, finds as follows:
As part of discovery in this matter the Defendant noticed Dr. John Granone the Plaintiff, for deposition on December 17th, 2012, in his capacity as the Claimant’s treating physician and as a fact witness regarding that treatment.
On December 27th, 2012 the Plaintiff filed a Motion to Determine Reasonable Expert Witness Fee for Deposition and/or Motion for Protective Order with this Court. The Court conducted the hearing on the Plaintiff’s motion on March 25th, 2013 and on March 28th, 2013 the Court granted the Plaintiff’s motion in part and entered an Order awarding expert witness fees to Dr. John Granone, reserving the right to determine the appropriate fee at a later hearing.
The Defendant subsequently has filed a Motion for Reconsideration arguing that this Court is bound by the Third District Court of Appeals holdings in Frantz vs. Golebiewski 407 So.2d 283 (Fla. 3rd DCA 1982) Fittipaldi USA, Inc. vs. Castroneves 905 So.2d 182 (Fla. 3rd DCA 2005) [30 Fla. L. Weekly D867a] and Comprehensive Health Center, Inc. vs. United Automobile Insurance Company 56 So.3d 41 (Fla. 3rd DCA 2011) [36 Fla. L. Weekly D54b].
The Defendant correctly sites Pardo vs. State of Florida 596 So.2d 665 (Sup. Court 1992) for the proposition that, in order to preserve stability and predictability in the law, trial courts are required to follow the holdings of higher courts — District Courts of Appeal. As such the Defendant argues that Comprehensive Health Center vs. United Automobile Insurance Company being a 3rd DCA opinion is controlling law over lower trial courts in the absence of any contrary opinion in any other District Court of Appeal.
This would be true if Comprehensive Health Center stood for the exact proposition that the payment of an expert witness for a deposition is not provided for in Fla. R. Civil Procedure 1.390. The conflict between the County Courts and Circuit Courts throughout the State of Florida is evident by the cited cases from both the Plaintiffs and the Defendant which stand for opposite rulings as to whether a treating physician is entitled to receive expert witness fees for deposition testimony.
In fact Circuit Court decisions published as recently as April 4th, 2013 have ruled that a treating physician is entitled to receive expert witness fees for deposition testimony. See Eric Zitzman vs. Get Fit Enterprises, d/b/a World Gym Jacksonville (Circuit Court 4th Judicial Circuit in and for Duval County, April 4th, 2013) [20 Fla. L. Weekly Supp. 790a].
Up until the Comprehensive Health Center decision, there were competing decisions within the 11th Judicial Circuit in and for Miami-Dade County seemingly on the same issue. This Court believes as the Court did in Healthy Sunrise Medical a/a/o Sara Guerra, as parent of Jalima Rodriguez vs. United Automobile Insurance Co. 17 Fla. L. Weekly Supp. 204a (11th Judicial Circuit in and for Miami-Dade County February 8th, 2010) that neither the Fittipaldi case nor the Frantz case deal with the specific question of whether a treating physician is entitled to an expert fee witness for deposition under Fla. R. of Civil Procedure 1.390 and therefore are not controlling.
This Court finds that the Comprehensive Health Center case does not stand for the exact proposition that a Plaintiff’s treating physician is not entitled to receive an expert witness fee for a deposition testimony pursuant to Fla. R. Civil Procedure 1.390. The Appellate Court merely declined to overturn the Circuit Court’s reversal of the County Court order because the Circuit Court found that the witnesses seeking to be deposed were actually fact witnesses and not expert witnesses. There is no mention in the decision as to which rule was being interpreted by either the Trial or the Circuit Court. The 3rd District Court of Appeal merely declined therefore to reverse the lower tribunal finding that there was no violation of a clearly established principle of law resulting in a miscarriage of justice. In fact the DCA actually acknowledges “even if we believe that the Circuit Court was erroneous in its conclusion as applied to the facts, we should decline to exercise jurisdiction”. The District Court of Appeal is finding merely stands for the proposition they were unwilling to reverse the finding of facts made by a lower tribunal and does not stand for the proposition that an expert witness is not entitled to an expert witness fee pursuant to Fla. R. Civil Procedure 1.390.
Based upon the above findings, this Court does not believe that the Comprehensive Health Center, Inc. decision is controlling upon this Court on the particular issue that is being raised in this Motion and the Court believes that the ruling and case law found as recently as the Zitzman case is both compelling and a correct interpretation of the rule. Accordingly the Defendant’s Motion for Reconsideration is hereby denied and the Court’s Order entered on March 28th, 2013 shall remain in full force and effect.
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