20 Fla. L. Weekly Supp. 117a

Online Reference: FLWSUPP 2002HEDDInsurance — Personal injury protection — Discovery — Depositions — Treating physician is not an expert witness entitled to be compensated for deposition testimony

UNITED AUTOMOBILE INSURANCE COMPANY, A Florida Corporation, Appellant, v. JOHN HEDDEN, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 08-616 AP & 08-617 AP. L.C. Case No. 08-000436 SP 05. November 2, 2012. On appeal from a decision rendered by the Miami-Dade County Court. Catherine Pooler, Judge. Counsel: Lara J. Edelstein, Office of the General Counsel of United Automobile Insurance Company, for Appellant. Mark Feldman, Mark J. Feldman, P.A., for Appellee.

(Before BLOOM, SOTO and REBULL, JJ.)

(REBULL, Judge.) This is an appeal from a final summary judgment entered by the trial court in favor of the Plaintiff-Appellee, John Hedden (“Hedden”). The summary judgment awarded Hedden Personal Injury Protection benefits for medical services rendered against Defendant-Appellant, United Automobile Insurance Company (“United Auto”). United Auto additionally appeals the final award of attorney’s fees and costs to Hedden [16 Fla. L. Weekly Supp. 339a].

In light of recent caselaw from the Third District Court of Appeal, Hedden rightly confesses error as to the final summary judgment and the final award of attorney’s fees and costs. Accordingly, we reverse both orders and remand for further proceedings.

The only remaining issue relates to trial court’s order requiring United Auto to pay $500 an hour to the doctor who treated or provided services to Mr. Hedden in order to take the doctor’s deposition. United Auto filed a motion with the trial court asking it to order the doctor to be deposed without an expert witness fee. Alternatively, United Auto asked the lower court to set a fee different from the $1,500 an hour the treating doctor was demanding. The trial court entered an order requiring United Auto to pay the treating doctor $500 an hour, to be paid 48 hours in advance of his deposition. The trial court erred.

The doctor who treated Mr. Hedden or provided services to him (for which Hedden is seeking payment from United Auto), is not an expert witness in this case. He is an ordinary fact witness like any other. A treating physician under these circumstances is not entitled to an expert witness fee, or any other fee other than that applicable to any fact witness. See Comprehensive Health Ctr., Inc. v. United Auto. Ins. Co., 56 So. 3d 41 (Fla. 3d DCA 2010) [36 Fla. L. Weekly D54b](noting circuit court correctly applied precedent in reversing county court order mandating United Auto pay $350 to two treating physicians before taking their depositions); Fittipaldi USA, Inc. v. Castroneves, 905 So. 2d 182 (Fla. 3d DCA 2005) [30 Fla. L. Weekly D867a] (noting holdings in cited cases that treating physicians are not accorded expert witness treatment “because they did not acquire their expert knowledge for the purpose of litigation but rather simply in the course of attempting to make their patients well”) (citing Ryder Truck Rental, Inc. v. Perez, 715 So.2d 289 (Fla. 3d DCA 1998) [23 Fla. L. Weekly D1400a]; Carpenter v. Alonso, 587 So.2d 572 (Fla. 3d DCA 1991); Frantz v. Golebiewski, 407 So.2d 283 (Fla. 3d DCA 1981)); see also Webb v. Priest, 413 So. 2d 43, 45 (Fla. 3d DCA 1982) (citing Frantz for proposition that discovery of treating physician is not governed by expert witness discovery rule).¹

Persuasive Federal authority has similarly held that treating physicians are not entitled to be compensated for their depositions as expert witnesses or for any other amount beyond that of any other fact witness. “There can be no dispute that Dr. Privitera will suffer some inconvenience by being deposed. He will, however, suffer no more inconvenience than many other citizens called forward to be deposed or testify as a trial witness in a matter in which they have first hand factual knowledge.” Mangla v. Univ. of Rochester, 168 F.R.D. 137, 140 (W.D.N.Y. 1996)(denying expert or other hourly fee to doctor who treated plaintiff in an action to recover disability insurance).

The issue as to whether a treating physician is an expert pursuant to Rule 26(b)(4)(C) continues to be a problem. Treating physicians are not retained for purposes of trial. Their testimony is based upon their personal knowledge of the treatment of the patient and not information acquired from outside sources for the purpose of giving an opinion in anticipation of trial. They are witnesses testifying to the facts of their examination, diagnosis and treatment of a patient. It does not mean that the treating physicians do not have an opinion as to the cause of an injury based upon their examination of the patient or to the degree of injury in the future. These opinions are a necessary part of the treatment of the patient. Such opinions do not make the treating physicians experts as defined by Rule 26(b)(4)(C).

Baker v. Taco Bell Corp., 163 F.R.D. 348, 349 (D. Colo. 1995).

As a result, we reverse the order requiring United Auto to $500 an hour to depose Hedden’s treating physician. On remand, the doctor should be governed by the rules and reimbursement applicable to what he is: a fact (and not expert) witness.

Additionally, Appellee’s Motion for Attorney’s Fees is DENIED. Since Appellee is not the prevailing party in this appeal, attorney’s fees are not attainable. § 627.428(1). Fla. Stat. (2009)

This cause is REMANDED to the trial court for further proceedings consistent with this opinion.

REVERSED and REMANDED. (BLOOM and SOTO J.J., concur.)

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¹In numerous appellate decisions, our colleagues have similarly held that treating physicians are not entitled to an expert witness fee. See UAIC v. Duncan, 17 Fla. L. Weekly Supp. 329a (Fla. 11th Cir. Ct. Feb. 11, 2010); UAIC v. Dade Injury Rehab. Ctr., Inc., 17 Fla. L. Weekly Supp. 82a (Fla. 11th Cir. Ct. Dec. 23, 2009); UAIC v. Pines Total Rehab, etc., (Fla. 11th Cir. Ct. March 9, 2010); UAIC v. Miami Medical Group, Inc., 17 Fla. L. Weekly Supp. 884b (Fla. 11th Cir. Ct. June 25, 2010); UAIC v. Florida Inst. for Pain, 17 Fla. L. Weekly Supp. 163d (Fla. 11th Cir. Ct. Dec. 9, 2009); and UAIC v. Prof’l Med. Group, 17 Fla. L. Weekly Supp. 1082a (Fla. 11th Cir. Ct. July 13, 2010).

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