20 Fla. L. Weekly Supp. 419a
Online Reference: FLWSUPP 2004BABAInsurance — Discovery — Depositions — Treating physician is not entitled to prepayment of expert witness fees under rule 1.280(b)(5) — Treating physician will be entitled to fees, if at all, under rule 1.390, depending on whether physician has been called upon to testify about subject of which he is an expert
NEUROLOGY PARTNERS, a/s/o Safi Babak, Plaintiff(s), vs. STATE FARM AUTO INSURANCE CO., Defendant(s). County Court, 4th Judicial Circuit in and for Duval County. Case No. 16-2011-SC-945. January 11, 2013. Roberto A. Arias, Judge. Counsel: D. Scott Craig, Jacksonville, for Plaintiff. David M. Gagnon, Taylor, Day, Grimm, Boyd and Johnson, Jacksonville, for Defendant.
ORDER ON DEFENDANT’S MOTION TO COMPELTREATING PHYSICIAN’S APPEARANCE ATDEPOSITION WITHOUT PAYMENT OF EXPERT FEE
This Cause, came on to be heard upon the Defendant’s Motion To Compel the Treating Physician’s appearance without pre-payment of fee. Both parties were represented by counsel. Having heard arguments of counsel for both the Defendant and the Plaintiff and having further considered the case law provided to the Court, the Court finds that the treating physician of the insured, Mark K. Emas, M.D. is not entitled to a prepayment of expert fees under Rule 1.280(b)(5), Florida Rules of Civil Procedure.
The Third District Court of Appeal in Comprehensive Health Center, Inc. v. United Auto, Ins. Co., 56 So. 3rd 41, 44 (Fla. 3rd DCA 2010) [36 Fla. L. Weekly D54b], held that the Trial Court had erred when it required the prepayment of fees by party seeking to depose two treating doctors, because these doctors were not expert witnesses under Rule 1.280. At the trial level, the county court had ordered the prepayment of $350.00 to each doctor because the trial court considered that the witnesses had “acquired their knowledge ‘in anticipation of litigation or for trial.’ ” The Third District of Appeal held that the circuit court correctly applied the decision of Frantz v. Golebiewski, 407 So. 2d 283 (Fla. 3rd DCA 1981) wherein the Third District Court of Appeal had previously held that the treating doctors were not considered “experts” under Rule 1.280 because the information opinions held by them had not been “acquired and developed in anticipation of litigation or for trial”, as required by Rule 1.280. Frantz, id at 285. The Third DCA, in Frantz, went on to explain that “[i]n contrast to an ‘examining physician,’ who falls within this latter category, [expert acquiring facts and opinions in anticipation of litigation or for trial], a treating doctor, . . . while unquestionably an expert, does not acquire his expert knowledge for the purpose of litigation but rather simply in the course of attempting to make his patient well.” Id at 285. Interestingly, the Third District Court of Appeal in Fittipaldi USA, Inc., v. Castroneves, 905 So. 2d 182 (Fla. 3rd DCA 2005) [30 Fla. L. Weekly D867a], in reaffirming Frantz’ holding that treating physicians are not subject to discovery rules governing expert witnesses and treating physicians as ordinary witnesses, indicated that there may be limits to such findings and testimony. See Footnotel at 905 So.2d 186. There the Third District Court of Appeal noted that “[i]t is entirely possible that even a treating physician’s testimony could cross the line into expert testimony.” So therefore, it appears that the question of whether Dr. Emas or any other treating physician would be entitled to an expert fee under Rule 1.390(c),Florida Rules of Civil Procedure, will be determined on the type of testimony “about the subject upon which called to testify.” Fla. R. Civ. Pro. 1.390(a). One of the cases the Court has considered is, United Automobile Insurance Co., v. Feel Better Rehabilitation, Inc., 18 Fla. L. Weekly Supp. 148a (Fla. 11th Judicial Circuit 2010) wherein Judge Leban undertakes thorough analysis of the difference between rule 1.280 and rule 1.390, Florida Rules of Procedure. Likewise, he thoroughly examines and distinguishes the holdings in Fittipaldi and Frantz. supra. Judge Lavan’ s conclusion is that treating physicians are entitled to an expert fee under Florida Rule of Civil Procedure 1.390(c). He reaches that conclusion based upon the unambiguous language of Rule 1.390 defining experts, as well as allowing such an expert fees in a reasonable amount as the court may determine. However, this Court has also reviewed the Third District Court of Appeal decision in Comprehensive Health Center, Inc. vs. Automobile Insurance, Co., 56 So.3rd 41(Fla.3rd DCA 2011) [36 Fla. L. Weekly D54b] wherein the Third District of Appeal again reaffirms the holding in Frantz in sustaining a reversal of a county court’s order requiring an insurance company to pay “$350.00 to each treating doctor, in advance, because the witnesses have acquired their knowledge “in anticipation litigation or for trial.” Id, at page 44. In that case, the circuit court declined to award expert witness fees to two treating doctors as “treating physicians may not charge expert witness fees because they do not obtain their information the purpose of litigation or rather in the course of treating their patients”. Id at page 43.
From the review of the above decision in Comprehensive Health Center, Inc. v. United Automobile Insurance Company, id, and the plain language of Rule 1.280, Florida Rules of Civil Procedure, the Court finds that a prepayment of fees should not be required. This court will leave for another day, the question of whether the questioning of Dr. Emas involved more than inquiry into facts or whether the inquiry called for testimony that can only be attributed to their expertise or special knowledge “about the subject upon which called to testify.” Rule 1.390, Florida Rules of Civil Procedure. Having said that, the only way that an award of such fees would be allowed is to read Comprehensive as a decision based entirely under Rule 1.280, Fla. R. Civ. Pro. Otherwise, treating physicians would not be allowed any expert fees whether under Rule 1.280 or Rule 1.390. Regardless, Dr. Emas is not entitled to pre-paid expert witness fees under Rule 1.280.
For the above stated reasons the Defendant’s Motion is Granted.
ORDERED AND ADJUDGED: The Defendant’s Motion is hereby Granted.
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