26 Fla. L. Weekly Supp. 654a

Online Reference: FLWSUPP 2608NGINCivil procedure — Expert witness — Fees — Treating physician is entitled to reasonable expert witness fee pursuant to rule 1.390 — Fact that witness was treating physician does not render him a fact witness

CW OF JAX, P.A., d/b/a ADVANCED HEALTHCARE CENTERS, as assignee of Bruce Ngin, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court (Small Claims), 4th Judicial Circuit in and for Duval County. Case No. 16-2015-SC-005568, Div. CC-A. October 1, 2018. Emmet F. Ferguson, III, Judge. Counsel: Ashley-Britt Hansen, for Plaintiff. Adam C. Muth, for Defendant.

ORDER GRANTING PLAINTIFF’S MOTIONTO DETERMINE THAT DR. JOHN D. FOSTER, MDIS AN EXPERT WITNESS AND IS THEREFOREENTITLED TO PREPAYMENT OF ANEXPERT WITNESS FEE PURSUANT TOTHE FLORIDA RULES OF CIVIL PROCEDURE

THIS CAUSE came to be heard upon Plaintiff’s Motion to Determine That Dr. John D. Foster, MD is an Expert and Entitled to Prepayment of His Expert Witness Fee Pursuant to the Florida Rules Of Civil Procedure. Both parties were represented by counsel. The Court, having heard arguments of the parties, finds as follows:

1. Dr. John D. Foster, MD treated Plaintiff’s patient, Mr. Bruce Ngin in connection with the November 2, 2012 subject motor vehicle accident.

2. Defendant requested the deposition of Dr. Foster in this case. Defendant objected to payment of Dr. Foster’s request to be paid a reasonable expert witness fee for his testimony regarding the patient’s treatment.

3. Plaintiff argued that treating physicians are expert witnesses pursuant to the Florida Rules of Civil Procedure, and as Mr. Ngin’s treating physician, Dr. Foster is entitled to a reasonable expert witness fee. Defendant argued that no physicians are entitled to be paid a reasonable expert witness fee if the deposition relates to the physician’s treatment of the subject patient.

ACCORDINGLY, IT IS ORDERED and ADJUDGED that:

1. Plaintiff’s Motion is GRANTED.

2. Dr. Foster is entitled to a reasonable expert witness fee pursuant to Fla. R. Civ. P. 1.390. Dr. Foster is an expert witness as defined by this rule. The mere fact that Dr. Foster treated Mr. Ngin after the subject motor vehicle accident does not prohibit him from receiving an expert fee and does not render him a fact witness. Dr. Foster will provide testimony that necessarily involves his expert medical opinion and should be reimbursed for doing so. See Zitzman v. Get Fit Enterprises d/b/a World Gym Jacksonville, 20 Fla. L. Weekly Supp. 790a (Fla. 4th Jud. Cir. April 4, 2013).

3. The parties shall agree on a reasonable expert witness fee for Dr. Foster providing his expert witness testimony.