Expert’s $1,500 Deposition Rate Violates Law, but doesn’t Limit Admissibility of Testimony

Case File

When a claimant tried to use a statutory limit on expert witness fees to keep testimony out of a workers compensation proceeding, he learned that the money charged could go to questions of credibility but that the testimony could be considered by the OJCC. Simply Research subscribers have access to full text of the decision.

Case

Rivera v. Publix Super Markets Inc., No. 21-02131RAA (Fla. OJCC 11/22/24).

What Happened

A supermarket obtained an independent medical evaluation for an employee claiming an injury sustained a work, and the doctor performing it charged $1,500 for his one-hour deposition regarding the IME, which was above the $200 statutory limit under Florida law.

The employee moved to strike the testimony in the case before the Judge of Compensation Claims.

Rule of Law

The statute that sets forth the $200 limit that experts in Florida may charge per hour for giving deposition testimony does not set forth a penalty for violating the statute.

What the OJCC Said

According to the OJCC, excluding testimony for violating the statute on limitations of costs for experts testifying during would contradict the intent of the state legislature that cases be decided on their merits.

Regarding the employee's case, the OJCC pointed out that the employee was aware of the doctor's report and deposition, and his attorney attended the deposition and examined the doctor.

"The rate charged by the doctor does not prejudice the claimant as he will not be required to pay the excess fee if the employer/ carrier becomes the prevailing party," the OJCC wrote. "The employer/carrier did not act in bad faith in paying the requested rate for the deposition, and allowing the testimony will not disrupt the efficient trial of the case."

However, the OJCC did note that the amount charged by the doctor for his evaluation and testimony would be considered when determining the credibility of the doctor's opinions and the weight given to them.

"The employer/carrier paid [the doctor] over $11,000.00 for his evaluation and testimony," the court wrote. "Such a hefty amount paid for the doctor's opinions and testimony raises a significant question as to their credibility."

Case Examples:

Marton v. Florida Hosp. Ormond Beach/Adventist Health System, 98 So. 3d 754 (Fla. Dist. Ct. App. 2012) -- The statute that limits the amount expert witnesses may charge also limits what a non-prevailing party must reimburse the prevailing party.

Suarez v. Steward Enterprises, 164 So. 3d 132 (Fla. Dist. Ct. App. 2015) -- An expert could not charge a claimant $750 per hour to go forward with deposition testimony as doing so would result in irreparable harm.

Takeaway

The limits on what expert witnesses may charge to provide deposition testimony do not apply so as to make testimony inadmissible for charges beyond the statutory limit of $200 per hour.

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