10 Fla. L. Weekly Supp. 429a
Insurance — Personal injury protection — Discovery — Depositions — Expert witness fees — Treating physician giving deposition testimony concerning whether bills are reasonable, related, and necessary, and not testifying as to permanency, is testifying as fact witness — Motion for protective order and expert witness fees denied
OLGA NAVARRO RODRIGUEZ, M.D. a/a/o MARIOLY GONZALEZ, Plaintiff, vs. ALLSTATE INDEMNITY COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division, Section 4. Case No. 02-4251 CC26. April 14, 2003. Richard J. Suarez, Judge. Counsel: James A. Hannon, for Plaintiff. Rachel P. Ray, for Defendant.
ORDER DENYING PLAINTIFF’S MOTION FOR PROTECTIVE ORDER
THIS MATTER came before the Court on April 11, 2003 upon Plaintiff’s Motion for Protective Order as to Defendant’s Notice of Taking Deposition of Dr. Olga Navarro Rodriguez, and the Court having heard argument of counsel and being otherwise fully advised in the premises, it is hereby
ORDERED AND ADJUDGED as follows:
1. Plaintiff, OLGA NAVARRO RODRIGUEZ, M.D., a/a/o MARIOLY GONZALEZ, has sued the Defendant alleging the Defendant has failed to pay certain personal injury protection benefits under a policy of insurance.
2. OLGA NAVARRO RODRIGUEZ, M.D., acted as a treating physician with respect to MARIOLY GONZALEZ.
3. Defendant has noticed the deposition of OLGA NAVARRO RODRIGUEZ, M.D., and the doctor has requested expert fees for such deposition in the amount of $400.00 per hour. Defendant objects to paying said fees stating the doctor’s role in this case is that of a fact witness rather than that of an “expert”. Defendant argues that the doctor’s deposition will concern whether the bills were reasonable, related and necessary, and will not be testifying as to permanency. Plaintiff argues that the deposition will concern the doctor’s treatment which goes toward the doctor’s expertise.
4. Florida law makes a distinction between a physician acting as an “expert witness” pursuant to the Florida Rules of Civil Procedure, and a “treating physician”. Ryder Truck Rental, Inc., vs. Gloria Perez, 715So.2d 289 (Fla. 3d DCA 1998).
5. This Court does not dispute that this doctor is an expert. But, in the context of civil litigation, a Plaintiff’s treating physician is not an “expert witness” such that would entitle the doctor to payment of an expert witness fee.
6. This Court concurs and follows the decisions on this matter found in Kurdian vs. State Farm Mutual Automobile Insurance Company, 7 Fla. Law Weekly Supp. 694 (2000); Albertino vs. Gonzales vs. State Farm Mutual Automobile Insurance Company, 7 Fla. [L.] Weekly Supp. 114a (2000); R.J. Trapina, M.D., P.A. vs. Progressive Express Insurance Company, 10 Fla. Law Weekly Supp. 266 (2003).
7. The doctor’s role in this case is that of a fact witness, not an expert witness. Therefore, the doctor is not entitled to expert witness fees.
For the above reasons, it is hereby
ORDERED AND ADJUDGED as follows:
1. The Plaintiff’s Motion for Protective Order is denied;
2. Dr. Olga Navarro Rodriguez shall appear at deposition as a fact witness without payment of expert witness fees at the time and place designated for her deposition.
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