10 Fla. L. Weekly Supp. 266b
Insurance — Personal injury protection — Discovery — Depositions — Treating physician/plaintiff is not entitled to expert witness fee — While treating physician is an expert as defined by rule 1.390(a), he did not acquire or develop expert knowledge for purposes of litigation, but rather, in course of attempting to make patient well
R.J. TRAPANA M.D., P.A., etc., Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE CO., Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 02-2897 COSO 60. February 19, 2003. Sharon L. Zeller, Judge. Counsel: James D. Underwood, Law Offices of Russel Lazega, P.A., for Plaintiff. Chad L. Christensen, Barnett, Barnard & Sechan, Hollywood, for Defendant.
ORDER
THIS CAUSE having come before the Court on Plaintiff’s Motion to Tax Expert Witness Fees for the Deposition of Dr. Trapana, and the court having heard argument of counsel and being fully advised in the premises, finds as follows:
1. Defendant, Progressive Express Insurance Company, has taken the deposition of R. J. Trapana, M.D., regarding the medical care, treatment, and billing provided to Defendant’s insured, Fernandez Jones.
2. Defendant has refused to agree to pay Dr. Trapana any expert witness fee for this deposition.
3. Dr. Trapana is a party to this litigation.
4. Dr. Trapana is an expert as defined in Rule 1.390(a). However, he is not being deposed about the special knowledge or skill about the subject upon which called to testify.
5. Dr. Trapana, while unquestionably an expert, “does not acquire his expert knowledge for the purpose of litigation but rather simply in the course of attempting to make his patient well.” Frantz v. Golebiewski, 407 So.2d 283 (3rd DCA 1981).
6. Rule 1.280(b)(4)(A)(ii) sets forth that discovery of facts and opinions held by experts “otherwise discoverable under the provisions of subdivision (b)(1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:
(A)(ii) — Any person disclosed by interrogatories or otherwise as a person expected to be called as an expert witness at trial may be deposed in accordance with rule 1.390 without motion or order of court.
7. The court recognizes that there is considerable conflict on this issue. The court concurs with the orders entered in Kurdian v. State Farm Mutual, 7 Fla. Law Weekly Supp. 694 (2000) and Gonzales v. State Farm Insurance, 8 Fla. Law Weekly Supp. 114a (2000). See also, Ryder Truck Rental v. Perez, 715 So.2d 289 (Fla. 3rd DCA 1998).
It is therefore,
ORDERED and ADJUDGED that Plaintiff’s Motion to Tax Expert Witness Fees for the deposition of Dr. Trapana is hereby denied.
* * *
