24 Fla. L. Weekly Supp. 692a
Online Reference: FLWSUPP 2409POHEInsurance — Personal injury protection — Discovery — Depositions — Owner of medical provider deposed as treating physician is not entitled to expert witness fee
STEVEN MELILLI, D.C., P.A., a/a/o Kristen M. Pohe, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 6th Judicial Circuit in and for Pinellas County, Civil Division. Case No. 12-003976-SC. November 18, 2016. Kathleen T. Hessinger, Judge. Counsel: Tory Tombs, Ellis, Ged & Bodden, P.A., Sarasota, for Plaintiff. John R. Hittel, Oxendine and Oxendine, P.A., Tampa, for Defendant.
ORDER DENYING PLAINTIFF’S MOTION TODETERMINE REASONABLE EXPERT WITNESS FEEFOR DEPOSITION AND/OR MOTIONFOR PROTECTIVE ORDER
THIS CAUSE having come to be heard on November 14, 2016 upon the Plaintiff’s Motion to Determine Reasonable Expert Witness Fee for Deposition and/or Motion for Protective Order, filed on June 17, 2016, and the Court having reviewed the file, having heard arguments from counsel, and being otherwise fully advised in the premises, it is hereby
ORDERED AND ADJUDGED as follows,
1) Plaintiff filed this action alleging breach of contract for the failure to pay personal injury protection benefits for treatment provided by STEVEN MELILLI, D.C., P.A.
2) Defendant filed a notice of taking deposition of the “treating physician” on June 10, 2016 and the deposition of Steven Melilli, D.C., as treating physician, took place on October 18, 2016.
3) Plaintiff filed its Motion to Determine Reasonable Expert Witness Fee for Deposition and/or Motion for Protective Order, claiming that Steven Melilli was entitled to an expert fee for the deposition. Defendant filed its response, arguing that Steven Melilli was deposed as a fact witness, as the treating physician and principal of Plaintiff, STEVEN MELILLI, D.C., P.A.
4) Plaintiff relied on an Order issued by Judge Edwin Jagger, granting a motion to determine reasonable expert witness fees in Steven J. Melilli, D.C., P.A. v. State Farm Mut. Auto. Ins. Co., Case No. 15-002840-SC (Pinellas Cty. Ct., April 25, 2016) (order on Plaintiff’s motion to determine reasonable expert witness fee for deposition and/or motion for protective order), which was distinguished by this Court because the issue of Steven Melilli, D.C. as the owner of the Plaintiff, standing to benefit directly from the claim, was not addressed.
5) The Sixth Judicial Circuit has held that a Plaintiff-owner physician, deposed as a treating physician, is not entitled to expert fees. Orthopedic Specialists, a/a/o Robert Hamrock v. State Farm Mut. Auto. Ins. Co., 22 Fla. L. Weekly Supp. 1065c (Fla. 6th Jud. Cir., Pinellas Cty. Ct., December 15, 2014) (denying Plaintiff’s motion for protective order and determination of entitlement to expert fees because the deponent was “the treating physician and owner of the Plaintiff. As such, he is not entitled to an expert fee for the taking of his deposition pursuant to Comprehensive Health Center, Inc. v. United Automobile Insurance Company, 56 So. 3d 41 (Fla. 3d DCA 2011)” [36 Fla. L. Weekly D54b]); John Granone, P.A., (Patient: Carolyn Cooper) v. State Farm Mut. Auto. Ins. Co., 16 Fla. L. Weekly Supp. 1158a (Fla. 6th Jud. Cir., Pasco Cty. Ct., Sept. 24, 2009) (denying Plaintiff’s motion determine expert witness fee of treating physician and president/owner of Plaintiff).
6) The Seventeenth Judicial Circuit has denied expert fees to a Plaintiff-owner physician, stating that as the Plaintiff-owner “stands to benefit directly by this claim” and “is therefore not entitled to an expert witness fee.” Alternative Medical Center of Ft. Lauderdale, Inc. (aa/a/o Alinfort Cadeau) v. United Auto. Ins. Co., 16 Fla. L. Weekly Supp. 595b (Fla. 17th Jud. Cir., Broward Cty. Ct., March 19, 2009).
7) Because Steven Melilli, D.C. is the principal of Steven Melilli, D.C., P.A., was the treating physician of the insured, and stands to benefit directly by this claim, he is a fact witness supporting his lawsuit, and therefore he is not entitled to an expert witness fee.
ORDERED AND ADJUDGED that:
1) Plaintiff’s Motion to Determine Reasonable Expert Witness Fee for Deposition and/or Motion for Protective Order is DENIED.
