26 Fla. L. Weekly Supp. 44a
Online Reference: FLWSUPP 2601MIGDCivil procedure — Expert witnesses — Fees — Treating physician not entitled to expert witness fees in instant case
DAVID N. MIGDAL, D.C. DIBLA SOUTHERN CHIROPRACTIC LIFE CENTER (PATIENT: BRENDAN THOMAS), Plaintiff, v. THE STANDARD FIRE INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County, Civil Division. Case No. 50-2017-SC-000856-XXXX-SB. March 5, 2018. Reginald R. Corlew, Judge. Counsel: Michael R. Prince, Ellis, Ged & Bodden, P.A., Boca Raton, for Plaintiff. L. Allen Gaffney, Ramey & Kampf, P.A., Tampa, for Defendant.
ORDER DENYING PLAINTIFF’S MOTIONTO COMPEL EXPERT WITNESS FEE
THIS CAUSE, having come to be heard before the Court on Plaintiff’s Motion to Compel Expert Witness Fee, having heard argument of counsel, and the Court being otherwise advised in the Premises, it is hereupon
ORDERED AND ADJUDGED Plaintiff’s Motion to Compel an Expert Witness Fee 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 currently set for April 17, 2018.
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 Plaintiff cites to Santa Lucia v. Diaz, 224 So.3d 916 (Fla. 2d DCA 2017) [42 Fla. L. Weekly D1868a] for the proposition that treating physicians are entitled to an expert witness fee. However, the Court finds that case distinguishable from the one presently before the Court. In Santa Lucia The Second District reversed a trial court’s order denying an expert witness fee to a treating physician that provided expert opinion testimony. Santa Lucia, 224 So.3d 916 (Fla. 2d DCA 2017) (“a treating doctor can be considered an expert where he provides expert opinion testimony”) (emphasis added).
In the case before this Court, there is no expert opinion testimony that has been given by the treating physician. In fact, the notice filed by the Defendant does not seek expert opinion testimony, Defendant did not notice the Deposition of the Treating Physician as an expert deposition, and Plaintiff filed Verified Interrogatories claiming an expert had yet to be retained.
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. Migdal was not designated as an expert in Plaintiff’s Verified Interrogatories and did not acquire his knowledge for the purpose of litigation, but in the course of treating the patient. Accordingly, Dr. Migdal is not entitled to an expert witness fee. See also Comprehensive Health Center, Inc. v. United Auto. Ins. Co., 56 So.3d 41 (Fla. 3d DCA 2010) [36 Fla. L. Weekly D54b].
The coordinated deposition of the Plaintiff’s treating physician, currently set for April 17, 2018, shall go forward without payment of an expert witness fee
