9 Fla. L. Weekly Supp. 196a
Insurance — Discovery — Depositions — Expert witness fee — Witness whose qualifications fulfill the requirements of rule 1.390 is entitled to receive expert witness fee for deposition testimony regarding the medical care and treatment provided to insured — If travel is required as result of deposition being scheduled anywhere other than witness’s office, insurer must pay witness for her portal to portal time, both to and from deposition location
LEIDA B. MORENO, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, a corporation authorized to do business in the state of Florida, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 01-3294 CC-25(1). October 18, 2001. Wendell M. Graham, Judge. Counsel: David Sampedro. Norma Iglesias.
ORDER DENYING DEFENDANT’S MOTION TO COMPELDEPOSITION OF DR. MIRIAM LACAYO WITHOUTEXPERT WITNESS FEE
THIS CAUSE having come on to be heard on October 4, 2001, on Defendant’s Motion to Compel Deposition of Dr. Miriam Lacayo without Expert Witness Fee, and the Court having heard argument of counsel, and being otherwise advised in the Premises, it is hereupon,
ORDERED and ADJUDGED that:
1. Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, has scheduled the deposition of Miriam Lacayo, M.D. to take place on October 10, 2001 regarding the medical care and treatment provided to Defendant’s insured, LEIDA B. MORENO.
2. The Defendant had refused to agree to pay Dr. Lacayo any expert witness fee for her expert medical testimony because it was only seeking fact testimony rather than medical opinion testimony.
3. This Court recognizes that Miriam Lacayo, M.D. is an expert witness as defined in Rule 1.390(a) of the Florida Rules of Civil Procedure. This Court further recognizes that Rule 1.390(c) mandates that an expert or skilled witness whose deposition is taken shall be allowed a fee in such reasonable amount as the Court may determine.
4. The Court recognizes that there ostensibly appears to be a conflict within the judicial circuits on this issue. Specifically, the Defendant has cited Kurdian v. State Farm Mut. Auto. Ins. Co., 7 Fla. L. Weekly Supp. 694A (County Court, 17th Judicial Circuit in and for Broward County 2000) and the Plaintiff has cited Medical Evalution Centers, Inc. v. Liberty Mutual Ins. Co., 8 Fla. L. Weekly Supp. 392A (County Court, 13th Judicial Circuit Court in and for Hillsborough County 2001). This Court further recognizes that the Honorable Lawrence D. King in the 11th Judicial Circuit County Court in and for Miami-Dade County has ruled in favor of the Plaintiff on this issue. See, Bouza v. State Farm Ins. Co., 00-5399 SP26(02), (County Court, 11th Judicial Circuit Court in and for Miami-Dade County, May 8, 2001).
IT IS HEREBY ORDERED AND ADJUDGED:
5. Accordingly, this Court recognizes that Miriam Lacayo, M.D. is entitled to receive an expert witness fee as her qualifications fulfill the requirements of Florida Rule of Civil Procedure 1.390 and she is entitled to be compensated as an expert witness for her testimony regarding the medical care and treatment provided to Defendant’s insured.
6. If Dr. Lacayo is required to travel as a result of her deposition being scheduled anywhere other than her office, Defendant will be required to pay Dr. Lacayo for her portal to portal time, both to and from the location of the deposition.
7. The hourly rate to be paid Dr. Lacayo has been agreed amongst the parties.
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