25 Fla. L. Weekly Supp. 576a
Online Reference: FLWSUPP 2506SHIHInsurance — Personal injury protection — Discovery — Depositions — Expert witness fee — Treating physician is not entitled to expert witness fee for his participation in and testimony at deposition where testimony was based solely on his experiences as treating physician of the claimant
GILMORE CHIROPRACTIC, a/a/o Monique Shihadeh, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 19th Judicial Circuit in and for St. Lucie County. Case No. 562015SC000905C1XXXX. July 28, 2017. Daryl Isenhower, Judge. Counsel: Melissa M. Lewis, Hicks & Motto, Palm Beach Gardens, for Plaintiff. Shannon E. Darsch, Conroy Simberg, West Palm Beach, for Defendant.
ORDER ON PLAINTIFF’S MOTION FOREXPERT FEES FOR DEPOSITION OFDR. KENNETH GILMORE. D.C.
THIS CAUSE having come on to be heard on Plaintiff’s Motion for Expert Fees for Deposition of Dr. Kenneth Gilmore, D.C. on June 21, 2017 and the Court having heard argument of counsel, and being otherwise advised in the premises, it is hereupon,
ORDERED and ADJUDGED that Plaintiff’s Motion for Expert Witness Fees for Deposition of Dr. Kenneth Gilmore, D.C. is hereby DENIED.
This court is aware of the competing opinions as to the issue of entitlement to expert witness fee to a “treating physician”; however, based unique facts and circumstances in the immediate suit, it is this Court’s determination that Dr. Kenneth Gilmore is not entitled to an expert witness fee for his participation and testimony at the December 20, 2016 deposition.
Fla. R. Civ. P. 1.390 (c) provides:
An expert or skilled witness whose deposition is taken shall be allowed a witness fee in such reasonable amount as the court may determine. The court shall also determine a reasonable time within which payment must be made, if the deponent and party cannot agree. All parties and the deponent shall be served with notice of any hearing to determine the fee. Any reasonable fee paid to an expert or skilled witness may be taxed as costs.
The deposition of Dr. Kenneth Gilmore was coordinated and noticed to take place on December 20, 2016. The subject depositions was noticed as the Plaintiff’s Corporate Representative and the treating physician of the Claimant, Monique Shihadeh, for service central to the immediate law suit.
The facts are such in this case that it is within the Court’s discretion to take into consideration the parties’ filings prior to the December 20, 2016 deposition. Specifically, the Defendant served expert discovery on the Plaintiff in December 2015. On or about January 25, 2016, Plaintiff filed its response to Defendant’s expert discovery, advising that an expert had not been retained by the Plaintiff as of January 25, 2016. Defendant relied upon these discovery responses in opposition to Plaintiff’s Motion for Expert Witness Fee and at the time of the June 21, 2017 hearing. These discovery responses were provided after the coordination of Dr. Gilmore’s deposition. At the time that Dr. Gilmore’s deposition was set, it is clear that Plaintiff themselves did not consider Dr. Gilmore an expert. Rather, Dr. Gilmore is has been designated by the Plaintiff as a fact witness.
Furthermore, on or about December 12, 2017, Defendant served additional supplemental discovery directed to Dr. Gilmore. Plaintiff responded to Defendant’s supplemental discovery on December 14, 2017, objecting to each of the Defendant’s requests stating “Dr. Gilmore is the Plaintiff, therefore Boecher Discovery is improper”.
Prior to the December 20, 2016 deposition of Dr. Gilmore, the Plaintiff has denied Dr. Gilmore’s designation as an expert on multiple occasions and understood that the testimony that was to be provided at the December 20, 2017 was such to be in accordance with Dr. Gilmore’s role as treating physician and corporate representative relative to billing and pricing.
Similarly, in Frantz v. Golebiewski, 407 So.2d 283, 285 (Fla. 3d DCA 1981), the Court determined that a treating doctor, who, while unquestionably an expert, did not acquire his expert knowledge for the purpose of litigation, but rather simply in the course of attempting to make his patient well was not entitled to expert witness fee. In this case, Dr. Gilmore was not designated as an expert and did not acquire his knowledge for the purpose of litigation, but in the course of treating the patient. Accordingly, Dr. Gilmore is not entitled to an expert witness fees. See also Comprehensive Health Center, Inc. v. United Auto. Ins. Co., 56 So.3d 41 (Fla. 3d DCA 2010) [36 Fla. L. Weekly D1553b].
Based upon the Court’s review of the deposition transcript, it is clear that Dr. Kenneth Gilmore only provided testimony based on his experience as the treating physician of the claimant, Monique Shihadeh. Therefore, Dr. Gilmore should be treated as an ordinary fact witness in this instance.
While a treating physician such as Dr. Gilmore is an expert, his knowledge was not obtained for the purpose of litigation but rather in his care and treatment of the claimant. Further, the pleadings in this matter have clearly illustrated that the Plaintiff has determined that Dr. Gilmore is not an expert for purposes of litigation. In addition, this Court takes into consideration that Dr. Kenneth Gilmore was not only the treating physician but also the sole owner of the Plaintiff medical facility central to this immediate law suit.CONCLUSION
This Court finds that Dr. Kenneth Gilmore was not produced as an expert at any time during the course of this litigation, nor did he provide testimony which aligns with that of an expert during the December 20, 2016 deposition; accordingly, Dr. Gilmore is not entitled to expert witness fees, as demanded in Plaintiff’s Motion.
