Opinion
No. 83-638.
June 7, 1983. Rehearing Denied August 8, 1983.
Petition from the Department of Professional Regulation, Board of Dentistry.
Nathan, Williams Reichenthal and Douglas L. Williams, Miami, for petitioner.
Davis, Kielsing McCall and Diane Kielsing, Tallahassee, for respondents.
Before BASKIN, PEARSON and JORGENSON, JJ.
The Florida Department of Professional Regulation, Board of Dentistry, filed an administrative complaint against Dr. Lawrence R. Engel. During the course of those proceedings Dr. Engel sought to take the deposition of four dentists who the Department alleged had knowledge of facts and circumstances supporting the complaint. The Department filed a motion to quash the subpoenas, alleging that Dr. Engel must tender expert witness fees in advance of the depositions. Following a telephonic hearing on the motion to quash, the hearing officer granted the motion and entered an order quashing the subpoenas. For the reasons which follow, we grant certiorari and quash the hearing officer's order.
Two of the dentists whose depositions are sought are on contract to the Board of Dentistry for the specific purpose of consulting with the Board and testifying at administrative proceedings such as the case sub judice. They are unquestionably expert witnesses within the meaning of Florida Rules of Civil Procedure 1.280(b)(3)(C) and 1.390. The other two doctors may or may not be expert within the meaning of the foregoing rules. See Congrove v. St. Louis-San Francisco Ry. Co., 77 F.R.D. 503 (W.D.Mo. 1978). See also Frantz v. Golebiewski, 407 So.2d 283 (Fla. 3d DCA 1981) (analysis of Fla.R.Civ.P. 1.280(b)(3)).
While we applaud the use of telephonic hearings in an effort to reduce the cost of litigation, we strongly suggest that such hearings be reported so that a proper record of the proceedings can be maintained.
Neither the motion nor the order cite to any authority which would require Dr. Engel to pay expert witness fees in advance of the depositions. The effect of the order is to deny Dr. Engel any ability to discover the Board's case and is a departure from the essential requirements of law. See Williams v. Florida Department of Commerce, Division of Employment Security, 374 So.2d 1158 (Fla. 3d DCA 1979); Drogaris v. Martine's, Inc., 118 So.2d 95 (Fla. 1st DCA 1960); see also State ex rel. Munch v. Davis, 143 Fla. 236, 196 So. 491 (1940) (if the accused in an administrative hearing is not granted the right to examine evidence offered against him due process of law is violated).
The granting of a license to practice dentistry creates a property right vested in the holder. See State ex rel. Estep v. Richardson, 148 Fla. 48, 3 So.2d 512 (1941); State ex rel. Jordan v. Pattishall, 99 Fla. 296, 126 So. 147 (1930); Solloway v. Department of Professional Regulation, 421 So.2d 573 (Fla. 3d DCA 1982); Florida State Board of Medical Examiners v. James, 175 So.2d 815 (Fla. 3d DCA 1965).
The disciplinary action against Dr. Engel is penal in nature and, therefore, he must be afforded a full opportunity to answer the charges and conduct an investigation as to the merits of the case. See State ex rel. Munch; Pattishall.
The Florida Supreme Court in enunciating what procedure should be followed in a proceeding to revoke a dentist's license to practice dentistry said:
It is sufficient if the accused is informed with reasonable certainty of the nature and cause of the accusation against him, has reasonable opportunity to defend against attempted proof of such charges, and the proceedings are conducted in a fair and impartial manner, free from any suspicion of prejudice, unfairness, fraud or oppression.State ex rel. Williams v. Whitman, 116 Fla. 196, 207, 156 So. 705, 710 (1934).
We deem it oppressive to require a respondent in an administrative hearing to pay expert witness fees in advance of deposition. The policy implications of Florida Rule of Civil Procedure 1.280(b)(3)(C) (and Federal Rule of Civil Procedure 26(b)(4)(c)) "that it is unfair to let one party have what the other party has paid for," Worley v. Massey-Ferguson, Inc., 79 F.R.D. 534, 542 (N.D.Miss. 1978) (citations omitted), are not present in the case sub judice. As the court in Worley pointed out the introductory phrase of Federal Rule 26(b)(4)(c) (analogous to Florida Rule 1.280(b)(3)(c)) "`unless manifest injustice would result . . .' the party seeking discovery shall pay . . . suggests that the court has the discretionary authority not to require such payment under appropriate circumstances," Id. at 542 (emphasis added).
A trial court in a civil case may issue an order requiring payment to a party whose expert is made subject to discovery of a fair portion of fees and expenses that the party incurred in obtaining information from the expert as a condition of discovery. See Fed.R.Civ.P. 26(b)(4); 1 J. Moore, K. Kovalsik, L. Folkman, Moore's Federal Practice 1983 Rules Pamphlet para. 26.4(b)[9] (1983).
We hold that given the penal nature of the proceedings these are "appropriate circumstances" in which payment of expert witness fees should not be required prior to the deposing of the experts.
We note that Dr. Engel may ultimately be responsible for these costs. See § 92.231, Fla. Stat. (1981); Fla.R.Civ.P. 1.280(b)(3)(C), 1.390(c).
Certiorari granted and order under review quashed.
The issues before us are whether subpoenas directed to four dentists were invalid because not accompanied by expert witness fees and whether such subpoenas, even if invalid, were subject to being quashed on motion of the Department of Professional Regulation, Board of Dentistry.
Under Section 120.58(1)(c), Florida Statutes (1981), the subpoenaed witnesses, who are not public employees, are entitled to be "paid such fees and mileage for their attendance as is provided in civil actions in circuit courts of this state," such payment to accompany the subpoena. A witness in a civil case is entitled to receive $5.00 for each day's actual attendance and $.06 per mile for actual distance traveled to and from the courts. § 92.142, Fla. Stat. (1981). The only statutory requirement for payment in advance to a witness is that "no person shall be compelled to attend court as a witness in any civil cause unless the party in whose behalf he is summoned shall first pay him the amount of compensation to which he would be entitled for mileage and per diem for one day . . . and he shall not be compelled to attend thereafter unless paid in advance." § 92.151, Fla. Stat. (1981). There is simply no requirement that an expert witness fee accompany a subpoena and, accordingly, no law that renders a subpoena invalid when not accompanied by an expert witness fee.
This is not to say, of course, that experts are not entitled to expert witness fees. Rather, the point is that no law or rule requires the payment of such fees at the time the subpoena is served. Indeed, where such fees are mentioned by statute or rule, it is contemplated that they are to be assessed after the fact, not as a prerequisite to obtaining the presence of the witness. See § 92.231(2), Fla. Stat. (1981) ("Any expert or skilled witness who shall have testified in any cause shall be allowed a witness fee . . . in the amount of $10 per hour or such amount as the trial judge may deem reasonable, and the same shall be taxed as costs." (emphasis supplied)); Rule 1.280(b)(3)(C) ("[T]he court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery." (emphasis supplied)).
I do not agree that it is oppressive to require the petitioner to pay expert witness fees in advance, particularly if, as Judge Jorgenson's opinion concedes, there is nothing oppressive in later taxing these as costs against the petitioner. But quite apart from any question of oppression, the hearing examiner had no authority to require that these expert witness fees accompany the subpoenas in order for them to be valid.
The other question before us is the standing of the Department of Business Regulation, Board of Dentistry, to challenge these subpoenas. It is apodictic that one who is a party has no standing to object to a subpoena issued to a non-party witness unless that subpoena asks for documents in which the party claims some personal right or privilege or asks for documents in the party's possession. Brown v. Braddick, 595 F.2d 961 (5th Cir. 1979); Oliver B. Cannon Son, Inc. v. Fidelity Casualty Co. of New York, 519 F. Supp. 668 (D.Del. 1981); Vogue Instrument Corp. v. LEM Instruments Corp., 41 F.R.D. 346 (S.D.N.Y. 1967); Shepherd v. Castle, 20 F.R.D. 184 (W.D.Mo. 1957). In fact this very proposition that only the witness to whom the subpoena is directed (in the absence of the exceptions mentioned, which are inapplicable here) has standing to seek relief from the subpoena is incorporated in the Administrative Procedure Act by which the instant proceedings are governed. Thus, Section 120.58(2), Florida Statutes (1981), provides:
"Any person subject to a subpoena . . . directing discovery may, before compliance and on timely petition, request the agency having jurisdiction of the dispute to invalidate the subpoena . . . on the ground that it was not lawfully issued. . . ."
For either of these reasons, the Department's motion to quash should have been denied, and the failure to do so was a departure from the essential requirements of the law.
Because the petitioner has an adequate remedy by direct appeal I would deny certiorari. See United States Fidelity Guaranty Co. v. Graham, 404 So.2d 863 (Fla. 4th DCA 1981), review denied, review dismissed, 419 So.2d 1195, 1201 (Fla. 1982); Ford Motor Co. v. Edwards, 363 So.2d 867 (Fla. 1st DCA 1978).