42
Fla. L. Weekly D1868aTop of Form
Fla. L. Weekly D1868aTop of Form
Costs
— Expert witness fees — Trial court erred in excluding from cost judgment
fees paid to experts who provided testimony on specific economic losses
plaintiff incurred as result of his injuries — Plaintiff is entitled to
recover these fees to extent he can establish fees were reasonable and
necessary — Trial court properly determined that two treating physicians who
testified during trial could not be considered as experts for purposes of
awarding fees — Trial court erred in excluding fees for one treating physician
who was listed as expert and who provided expert testimony at trial — Remand
for evidentiary hearing to determine amount of reasonable fees to be awarded
for experts
— Expert witness fees — Trial court erred in excluding from cost judgment
fees paid to experts who provided testimony on specific economic losses
plaintiff incurred as result of his injuries — Plaintiff is entitled to
recover these fees to extent he can establish fees were reasonable and
necessary — Trial court properly determined that two treating physicians who
testified during trial could not be considered as experts for purposes of
awarding fees — Trial court erred in excluding fees for one treating physician
who was listed as expert and who provided expert testimony at trial — Remand
for evidentiary hearing to determine amount of reasonable fees to be awarded
for experts
RAYMOND C. SANTA LUCIA, Ph.D.,
Appellant, v. FERNANDO R. DIAZ, M.D.; and FLORIDA GULF-TO-BAY ANESTHESIOLOGISTS
ASSOCIATES, P.A., Appellees. 2nd District. Case No. 2D15-4901. Opinion filed
August 25, 2017. Appeal from the Circuit Court for Pinellas County; Amy M.
Williams, Judge. Counsel: Melissa H. Powers of The Maher Law Firm, P.A., Winter
Park; and William E. Hahn of William E. Hahn, P.A., Tampa, for Appellant.
Michael R. D’Lugo and Linda S. O’Connor of Wicker, Smith, O’Hara, McCoy &
Ford, P.A., Orlando, for Appellees.
Appellant, v. FERNANDO R. DIAZ, M.D.; and FLORIDA GULF-TO-BAY ANESTHESIOLOGISTS
ASSOCIATES, P.A., Appellees. 2nd District. Case No. 2D15-4901. Opinion filed
August 25, 2017. Appeal from the Circuit Court for Pinellas County; Amy M.
Williams, Judge. Counsel: Melissa H. Powers of The Maher Law Firm, P.A., Winter
Park; and William E. Hahn of William E. Hahn, P.A., Tampa, for Appellant.
Michael R. D’Lugo and Linda S. O’Connor of Wicker, Smith, O’Hara, McCoy &
Ford, P.A., Orlando, for Appellees.
(KELLY, Judge.) In this medical
malpractice action, Raymond Santa Lucia appeals from the cost judgment rendered
after a jury verdict in his favor. He first contends the trial court abused its
discretion in excluding from the cost judgment fees for Lawrence Forman and Dr.
Hartley Mellish, the experts who provided testimony on the specific economic
losses he incurred as a result of his injuries. The appellees properly concede
Santa Lucia is entitled to recover these fees to the extent he can establish
the fees were reasonable and necessary. See Payne v. Spier, 562
So. 2d 440, 441 (Fla. 4th DCA 1990) (holding that the plaintiff was entitled to
recover reasonable expert fees for a rehabilitation expert and economist).
malpractice action, Raymond Santa Lucia appeals from the cost judgment rendered
after a jury verdict in his favor. He first contends the trial court abused its
discretion in excluding from the cost judgment fees for Lawrence Forman and Dr.
Hartley Mellish, the experts who provided testimony on the specific economic
losses he incurred as a result of his injuries. The appellees properly concede
Santa Lucia is entitled to recover these fees to the extent he can establish
the fees were reasonable and necessary. See Payne v. Spier, 562
So. 2d 440, 441 (Fla. 4th DCA 1990) (holding that the plaintiff was entitled to
recover reasonable expert fees for a rehabilitation expert and economist).
Santa Lucia also argues the trial
court erred by excluding expert witness fees for three physicians who testified
during the trial. The trial court determined the doctors could not be
considered experts because they had treated Santa Lucia. A treating doctor can
be considered an expert where he provides expert opinion testimony. See Field
Club, Inc. v. Alario, 180 So. 3d 1138, 1141 (Fla. 2d DCA 2015) (citing Clair
v. Perry, 66 So. 3d 1078, 1079 n.1 (Fla. 4th DCA 2011)). Here, as the
appellees properly concede, the trial court erred when it found that one of the
treating doctors, Dr. John Bach, could not be considered an expert for the
purposes of awarding fees. Dr. Bach was listed as an expert and in fact
provided expert testimony. Accordingly, the trial court should have allowed
Santa Lucia to recover a reasonable expert witness fee for his testimony. We agree
with the appellees, however, that the trial court properly determined that
Santa Lucia’s remaining treating doctors could not be considered as experts for
the purposes of awarding expert fees.
court erred by excluding expert witness fees for three physicians who testified
during the trial. The trial court determined the doctors could not be
considered experts because they had treated Santa Lucia. A treating doctor can
be considered an expert where he provides expert opinion testimony. See Field
Club, Inc. v. Alario, 180 So. 3d 1138, 1141 (Fla. 2d DCA 2015) (citing Clair
v. Perry, 66 So. 3d 1078, 1079 n.1 (Fla. 4th DCA 2011)). Here, as the
appellees properly concede, the trial court erred when it found that one of the
treating doctors, Dr. John Bach, could not be considered an expert for the
purposes of awarding fees. Dr. Bach was listed as an expert and in fact
provided expert testimony. Accordingly, the trial court should have allowed
Santa Lucia to recover a reasonable expert witness fee for his testimony. We agree
with the appellees, however, that the trial court properly determined that
Santa Lucia’s remaining treating doctors could not be considered as experts for
the purposes of awarding expert fees.
Accordingly, we reverse the final
cost judgment and remand for an evidentiary hearing to determine the amount of
reasonable fees to be awarded for Lawrence Forman, Dr. Mellish, and Dr. Bach.
cost judgment and remand for an evidentiary hearing to determine the amount of
reasonable fees to be awarded for Lawrence Forman, Dr. Mellish, and Dr. Bach.
Affirmed in part; reversed in part;
and remanded with directions. (LUCAS and BADALAMENTI, JJ., Concur.)
and remanded with directions. (LUCAS and BADALAMENTI, JJ., Concur.)
* * *