10 Fla. L. Weekly Supp. 907b
Insurance — Personal injury protection — Discovery — Depositions — Expert witness fee — Role of treating physician is that of fact witness not entitled to expert witness fee — Motion to compel deposition without payment of fee granted
GIBSON CHIROPRACTIC OFFICE (as assignee for Lanarva Owens), Plaintiff, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 2002-5277 SP. Division O. September 8, 2003. Ronald P. Higbee, Judge. Counsel: Richard C. Watson, Rahim, Watson, Dearing, Berry and Moore, P.A., Jacksonville, for Plaintiff. James C. Rinaman, III, McConnaughhay, Duffy, Coonrod, Pope & Weaver, P.A., Jacksonville, for Defendant.
ORDER ON DEFENDANT’S MOTION TO COMPEL TESTIMONY OF DR. STEPHEN SMITH WITHOUT PAYMENT OF AN EXPERT FEE
THIS CAUSE, came to be heard on July 28, 2003, on the Defendant’s Motion to Compel Testimony of Dr. Stephen Smith without payment of an expert fee. The Court having reviewed the Motion, having heard the argument of counsel, having reviewed the relevant case law and being otherwise fully advised in the premises, finds:
1. Plaintiff has sued Defendant alleging Defendant failed to pay certain personal injury protection (PIP) benefits and interest on same to Gibson Chiropractic Office, as assignee of Lanarva Owens.
2. Dr. Stephen Smith, is an employee of Plaintiff and as such treated the Plaintiff’s patient, Lanarva Owens. Defendant does not argue (and this Court does not find) that Dr. Stephen Smith, is not an expert. Rather, Dr. Stephen Smith’s role in this case is that of a fact witness rather than that of an “expert” (who acquires knowledge of facts and develops opinions in anticipation of litigation).
3. While treating “physicians” are “experts” within the meaning of Florida Rule of Civil Procedure 1.390(a), if they are not being used in the case as an expert witness, but merely as a fact witness, they are not entitled to an expert witness fee. Frantz v. Golebiewski, 407 So. 2d 283, 285 (Fla. 3d DCA 1981); Ryder Truck Rental, Inc. v. Perez, 715 So. 2d 289, 290-91(Fla. 3d DCA 1998). See Gonzales v. State Farm Mut. Auto. Ins. Co., 8 Fla. L. Weekly Supp.114a (Fla. Miami-Dade Cty. Ct. Nov 9, 2000); Kurdian v. State Farm Mut. Auto. Ins. Co., 7 Fla. L. Weekly Supp. 694a (Fla. Broward Cty. Ct. June 29, 2000); Hutto v. Atlanta Cas. Co., 10 Fla. L. Weekly Supp. 423a (Fla. Escambia Cty. Ct. Mar 26, 2003); St. Augustine Physicians Assoc., Inc., d/b/a Monohan Chiropractic Clinic v. Progressive Express Ins. Co., 10 Fla. L. Weekly Supp. 428a (Fla. Putnam Cty. Ct. Feb 4, 2003); Rodriguez v. Allstate Indem. Co., 10 Fla. L. Weekly Supp. 429a (Fla. Miami-Dade Cty. Ct. April 14, 2003); Med. Evaluation Ctrs., Inc., v. Progressive Express Ins. Co., 10 Fla. L. Weekly Supp. 438d (Fla. Hillsborough Cty. Ct. April 14, 2003); Complete Wellness Med. Ctr. v. Progressive Express Ins. Co., 10 Fla. L. Weekly Supp. 428b (Fla. Volusia Cty. Ct. Feb. 24, 2003); see also A-1 Mobile MRI, Inc. v. Allstate Ins. Co., 10 Fla. L. Weekly Supp. 460a (Fla. Broward Cty. Ct. Apr. 28, 2003) (granting defendant’s motion to compel treating physician’s deposition without expert fee, relying in part on Frantz and Ryder Truck Rental, Inc., and discussing federal cases construing the corresponding federal rules of civil procedure). Therefore, it is
ORDERED AND ADJUDGED:
Defendant’s Motion to Compel the Deposition of Dr. Stephen Smith Without Payment of an Expert Fee is GRANTED. Dr. Stephen Smith shall appear for deposition without payment of an expert witness fee at a date, time and location indicated in a properly served subpoena for deposition. A copy of this Order shall be served upon Dr. Stephen Smith, together with the subpoena duces tecum for deposition. This Court reserves the right to fashion a Protective Order for matter brought to this Court’s attention.
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