20 Fla. L. Weekly Supp. 420a
Online Reference: FLWSUPP 2004ADAMInsurance — 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 whether physician has been called upon to testify about subject of which he is an expert
NEUROLOGY PARTNERS, a/s/o Timothy Adams, Plaintiff(s), vs. STATE FARM AUTO INSURANCE CO., Defendant(s). County Court, 4th Judicial Circuit in and for Duval County. Case No. 16-2012-SC-3171. January 11, 2013. On Motion for Rehearing January 28, 2013. Roberto A. Arias, Judge.
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 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 Footnote1 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.
ORDER ON PLAINTIFF’S MOTION FORREHEARING AND CLARIFICATION OF DEFENDANT’SMOTION TO COMPEL TREATING PHYSICIAN’SAPPEARANCE AT DEPOSITION WITHOUTPAYMENT OF EXPERT FEE
This Cause, came on to be heard ex-parte, upon the Plaintiff’s Motion for Rehearing and Clarification. Therein, the Plaintiff expresses it’s belief that this Court misinterpreted the Third District Court of Appeal’s decision and Comprehensive Health Center, Inc. (as assignee of Telusnor) v. United Auto. Ins. Co., 56 So. 3rd 41, 44 (Fla. 3rd DCA 2010) [36 Fla. L. Weekly D54b]. The Plaintiff also maintains that the trial Court mis-categorized the holding of Third District Court of Appeal in this case.
The Court hereby clarifies it’s Order on Defendant’s Motion To Compel by explaining what this Court understands the Third District Court of Appeal to have held in Telusnor, supra. The issue presented to the Third District of Appeal was whether or not to grant second-tier certiorari review of Circuit Court’s appellate decision declining to award of expert witness fees to physicians that the automobile insurance company set to depose, in the medical provider’s action for personal injury protection (PIP) benefits. The Third District Court of Appeal denied certiorari after finding that the Circuit Court did not violate clearly established principles of law that resulted in miscarriage of justice when it held that the treating physicians were fact witnesses rather than expert witnesses under Florida Rule of Civil Procedure 1.280. In reaching that conclusion, the Third District Court of Appeal found that the Circuit Court correctly applied the decision of Frantz v. Golebiewski, 407 So. 2d. 283 (Fla. 3rd DCA 1981) when the Circuit Court reversed the trial county court’s order which required the insurance provider to pay $350.00 to each physician in advance of depositions, because the witnesses had acquired their knowledge “in anticipation of litigation or for trial.” Telusnor, supra at page 44. The Plaintiff is correct it categorizing the discussion of the Third District Court of Appeal in Telusnor as dicta, that is, not necessary for the ultimate finding that certiorari would be denied. However, it is clear to this Court that the Third District Court of Appeal decisions, including Telusnor, clearly do not consider treating physicians as expert witnesses under Florida Rules of Civil Procedure 1.280 requiring the prepayment of expert witness fees to the doctors.
The Court has also reviewed the case of Comprehensive Health Center, Inc., (as assignee Lynch) v. United Auto Ins. Co., 99 So. 3rd 525 (Fla. 3rd DCA 2011) [36 Fla. L. Weekly D1553b]. Similar to the Telusnor decision, the Lynch decision deals with whether or not the Court of Appeal should deny or grant second tier certiorari review. The issue that came before the Third District Court was whether the Plaintiff, Comprehensive Health Center, LLC, was entitled to a appellate attorney fees from the insured’s insurance company. The Circuit Court, in it’s appellate capacity, had reversed the county court’s granting of Summary Judgment in favor of to the insurance company and had affirmed the Trial Court’s Order requiring that expert fees be paid to the treating physicians. The Third District Court of Appeal granted certiorari and found that the Circuit Court had departed from the essential requirements of the law solely because the Circuit Court had failed to grant the medical provider’s motion for appellate attorney’s fees to the extent that he had prevailed on appeal to the Circuit Court, in the reversal of Summary Judgment, pursuant to Section 627.428(1), Florida Statutes. The Third District Court of Appeal never reached nor discussed the issue as to whether treating physicians should be required to be paid expert fees before the deposition is taken, as this issue was not presented for it’s review. Additionally, unlike in Telusnor, the Third District Court of Appeal never discussed the lower ruling on expert witness fees, and did not cite Florida Civil Procedure Rule 1.390.
Florida Rule of Procedure 1.280(5)(c) is the vehicle under which the Plaintiff argues the treating physicians in this case are entitled to an order requiring the Defendant to pre-pay the expert a reasonable fee for time spent in being deposed. While the Court may sympathize with the Plaintiff’s position that the treating physicians should be compensated just as any other expert who is hired for testifying at trial, Florida Rule Civil Procedure 1.280(5) applies only to the “discovery of facts known and opinions held by experts. . . acquired or developed in anticipation of litigation or for trial . . .” Therefore, the treating physician would only be entitled to fees, if at all, under Florida Rule of Procedure 1.390, depending whether he has been called to testify about the subject of which he is an expert. For that matter, like a treating physician, the insurance company’s I.M.E. would not qualify as an expert under Rule 1.280(5), because that doctor likewise did not acquire or develop the facts and opinions in anticipation of litigation or trial, as required by Florida Rules of Civil Procedure 1.280(5). And, like the treating physician, he may be entitled to it under Rule 1.390, again, depending on whether he has been called to testify about the subject of which he is an expert. Wherefore, the Plaintiff’s Motion For Rehearing is Denied and this Order has clarified the previous order entered by the Court, in the event that it was not understandable by any of the parties.
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