9 Fla. L. Weekly Supp. 776a
Insurance — Personal injury protection — Discovery — Depositions — Expert witness fee — Reasonable hourly rate for deposition of physician who conducted peer review is $400 — Physician is not entitled to prepayment for deposition testimony; payment for first hour is to be tendered immediately preceding start of deposition and payment for any additional time is to be mailed within five days — Physician is not entitled to be compensated for time spent preparing for deposition — Physician will be entitled to cancellation fee if plaintiff cancels deposition within two business days of deposition and physician is unable to fill timeslot — Physician is entitled to compensation for any pre-deposition conferences with either party
COLONIAL MEDICAL CENTER, as assignee of JUAN GONZALEZ, Plaintiff, vs. ALLSTATE INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. CCO-02-3700. October 8, 2002. Thomas R. Kirkland, Judge. Counsel: Alexander Billias, Morgan, Colling and Gilbert, P.A., Orlando, for Plaintiff. Charles F. Weeks, Cameron, Hodges & Coleman, P.A., Ocala, for Defendant.
ORDER ON PLAINTIFF’S MOTION TO SETREASONABLE EXPERT WITNESS FEE
THIS CAUSE having come before the Court on September 4, 2002 on Plaintiff’s Motion to Set Reasonable Expert Witness Fee, (certificate date July 22, 2002), both parties, appearing through counsel and having presented the following argument:
FACTS AND PROCEDURAL BACKGROUND
1. This personal injury protection litigation involves nonpayment of medical bills by Defendant pursuant to a peer review conducted by W. Kevin Cox, M.D.
2. Plaintiff scheduled the deposition of W. Kevin Cox, M.D., to take place on October 8, 2002 at 12:30 p.m. at Dr. Cox’s office, which is located at 875 S. Orange Avenue, Suite 500-105, Orlando, Florida 32806.
3. After scheduling said deposition, Dr. Cox contacted Plaintiff’s counsel and demanded four-day (4-day) prepayment in the amount of $775.00, which included one (1) hour of his deposition testimony at an hourly rate of $575.00 and a $200.00 deposition preparation fee. In addition, Dr. Cox asserted that if his deposition is cancelled within twenty-four (24) hours of October 8, 2002, he should be entitled to a deposition cancellation fee.
4. Plaintiff argued that Dr. Cox’s hourly rate of $575.00 is excessive and that chiropractors and medical doctors are typically awarded hourly rates for deposition testimony in the range of $250.00 to $500.00. In support of its position, Plaintiff cited Longwood Chiropractic Group, on behalf of Robert Demetree, D.C., F.I.A.M.A. v. Progressive Express Ins. Co., 8 Fla. [L. Weekly] Supp. 867a (Fla. Seminole Cty. Ct. 2001); Silva v. State Farm Mut. Auto. Ins. Co., 8 Fla. [L. Weekly] Supp. 650b (Fla. Hillsborough Cty. Ct. 2001); Ducati v. State Farm Mut. Auto. Ins. Co., 9 Fla. [L. Weekly] Supp. 141a (Fla. Pinellas Cty. Ct. 2001); Rivas Therapy Clinic, as assignee of Sonya Hanor v. Allstate Indemnity Co., 9 Fla. [L. Weekly] Supp. 251a (Fla. Hillsborough Cty. Ct. 2002); and Medical Evaluation Ctrs., Inc., as assignee of Timothy Mullen v. State Farm Mutual Auto. Ins. Co., 8 Fla. [L. Weekly] Supp. 861a (Fla. Hillsborough Cty. Ct. 2001).
5. It is undisputed that Allstate paid $290.00 to the third-party vendor, Concentra Managed Care, Inc., which included compensation for both Concentra’s scheduling and coordination of the peer review and Dr. Cox’ fee for actually performing the peer review and preparing the report. Accordingly, Dr. Cox was paid an amount less than $290.00 to actually perform the peer review and prepare the report.
6. Plaintiff asserted it would be fundamentally unfair for Dr. Cox to charge Plaintiff $775.00 per hour to simply give deposition testimony regarding the peer review and report that Dr. Cox had charged Concentra an amount less than $290.00 to actually perform, prepare, and review.
7. Plaintiff also asserted that Dr. Cox should not be entitled to compensation for the time he expends in preparation for his deposition, as a deposition preparation fee is not a taxable cost under the Statewide Uniform Guidelines for Taxation of Costs in Civil Actions and there is no section of Florida Statutes whereby a doctor is entitled to be compensated for the time he expends preparing for his deposition.
8. In addition, Plaintiff argued that Dr. Cox is not entitled to be prepaid, as there is no section of Florida Statutes whereby a doctor is entitled to prepayment for giving deposition testimony. Plaintiff also asserted that it would be more appropriate to bring payment to the deposition of Dr. Cox.
9. Similarly, Plaintiff argued that Dr. Cox should not be entitled to impose a deposition cancellation fee on Plaintiff, as said cost would not be taxable pursuant to the Statewide Uniform Guidelines for Taxation of Costs in Civil Actions and there is no section of Florida Statutes whereby a doctor is entitled to impose a deposition cancellation fee.
LAW AND ANALYSIS
The Court does hereby ORDER and ADJUDGE as follows:
10. This Court finds that $400.00 per hour is a reasonable hourly rate for W. Kevin Cox, M.D., to be compensated for his expert deposition testimony. Accordingly, the hourly rate to be paid Dr. Cox for his deposition testimony is $400.00.
11. Dr. Cox is not entitled to prepayment for his deposition testimony. Plaintiff’s counsel shall bring payment in the amount of $400.00 to the deposition of Dr. Cox and tender payment to Dr. Cox immediately preceding the start of the deposition.
12. If Dr. Cox’ deposition exceeds the scheduled one (1) hour, Plaintiff shall provide additional compensation to Dr. Cox at the pro rata rate of $400.00 per hour. In addition, Plaintiff shall tender the additional compensation by mailing a check to Dr. Cox within five (5) days of the deposition.
13. Dr. Cox is not entitled to be compensated for the time he expends in preparation for his deposition. Accordingly, Dr. Cox’s request for $200.00 in this regard is hereby DENIED.
14. If Plaintiff reschedules the deposition of Dr. Cox within two (2) business days of October 8, 2002, Dr. Cox will be entitled to a deposition cancellation fee in the amount of $400.00 if Dr. Cox is unable to fill that timeslot with any other patient appointments or depositions. Accordingly, if Plaintiff reschedules the deposition of Dr. Cox prior to two (2) business days of October 8, 2002, Dr. Cox will not be entitled to a deposition cancellation fee.
15. If either Plaintiff or Defendant schedules and conducts a pre-deposition conference with Dr. Cox, Dr. Cox shall be compensated for said conference at the pro rata rate of $400.00 per hour to be paid by the party that schedules and conducts the pre-deposition conference.
16. If Dr. Cox wishes to petition this Court to award any additional expert witness fees, Dr. Cox may forward a letter to the Court and a hearing on this matter shall be set. Furthermore, Dr. Cox may appear pro se at said hearing.
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