10 Fla. L. Weekly Supp. 423a
Insurance — Discovery — Depositions — Expert witness fee — Treating physician is ordered to appear without fee to be examined regarding facts that are subject matter of lawsuit, but expert witness fee shall be paid before physician is required to answer any question that clearly calls for expert opinion
NATALIE HUTTO, Plaintiff, vs. ATLANTA CASUALTY COMPANY, Defendant. County Court, 1st Judicial Circuit in and for Escambia County. Case No. 2001-SC-3390. March 26, 2003. G. J. Roark, III, Judge. Counsel: Robert N. Heath, Jr. Gregory M. Shoemaker.
ORDER ON DEFENDANT’S MOTION TO COMPEL DEPOSITION
THIS CAUSE came before the Court on Defendant’s Motion to Compel Deposition of Chiropractor without Expert Witness Fee. The Court, finding that the chiropractor was Plaintiff’s treating physician, concludes the following.
Rule 1.390, Florida Rules Civil Procedure, define an “expert witness” as a person “duly and regularly engaged in the practice of a profession who holds a professional degree from a university or college and has had special professional training and experience, or one possessed a special knowledge or skill about the subject upon which called to testify.” Rule 1.390(a) FRCP. The rule goes on to provide that an expert or skilled witness whose deposition is taken shall be allowed a witness fee . . . . Rule 1.390(c) FRCP. Rule 1.280(4) addresses discovery of facts known and opinions held by experts. That Rule provides that, “unless manifest injustice would result, the Court shall require that the parties seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under . . . this Rule.” Rule 1.280(4)(c) FRCP. That Rule further provides that “as used in these Rules an expert shall be an expert witness as defined in Rule 1.390(a).” Rule 1.280(4)(d).
There is no disagreement that the treating physician is “a person duly and regularly engaged in the practice of a profession who holds a professional degree from a university or college and has had special professional training and experience” and who under normal circumstances fits the definition of an expert witness. However, the 3d DCA in a case brought under Rule 1.280, FRCP, held that that Rule did not apply to discovery directed at a treating physician whose information was “not acquired in preparation for trial but rather because he was an actor or viewer with respect to transactions or occurrences that are part of the subject matter of the law suit.” Frantz v. Golebiewski, 407 So.2d 283 (Fla. 3d DCA 1981). Citing (b)(3)(B), the Court held that the Rule applies only to information and opinions which were acquired and developed in anticipation of litigation or for trial, and not those acquired in the course of attempting to treat the physician’s patient. Frantz, supra. The Court confirmed this decision in Ryder Truck Rental, Inc. v. Perez, 715 So.2d 289 (Fla. 3d DCA 1998).
Despite the above, where the Defendant seeks to elicit opinions from the treating physician, this Court feels that such questions go beyond the interrogation of the treating physician as an actor or viewer testifying to facts which are the subject matter of the lawsuit, and such testimony should be compensated in the manner prescribed by the Rules. See, Ryder, Jorgenson dissenting.
Accordingly, it is ORDERED AND ADJUDGED that the treating physician shall be required to appear without fee to be examined regarding the facts which are the subject matter of this lawsuit.
It is further ORDERED AND ADJUDGED that should the Defendant propound any question which clearly calls for an expert opinion, all fees which are mandated by the Rules regarding expert witnesses shall be paid before the witness is required to answer such question or questions.
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