11 Fla. L. Weekly Supp. 336b
Insurance — Personal injury protection — Discovery — Depositions — Expert witness fees — Treating physician is not entitled to expert witness fee for deposition testimony
ORANGE PARK CHIROPRACTIC CENTER, P.A., (as assignee for Charles Mowry), Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Clay County. Case No. 2002-1931-SC C. January 30, 2004. Timothy R. Collins, Judge. Counsel: Michele Muir, for Plaintiff. Glenn S. Banner, James C. Rinaman, III & Associates, P.A., Jacksonville, for Defendant.
ORDER ON PLAINTIFF’S MOTION FOR PROTECTIVE ORDER/MOTION TO COMPEL EXPERT FEE AS TO SECOND AMENDED NOTICES OF TAKING DEPOSITIONS DUCES TECUM
THIS cause came on to be heard on the Plaintiff’s Motion for Protective Order/Motion to Compel Expert Fee as to Second Amended Notices of Taking Depositions Duces Tecum on January 26, 2004, and the Court having reviewed the Motion, having heard argument of Counsel, having reviewed the relevant Case Law and Rules of Civil Procedure and being otherwise fully advised in the premises, the Court finds:
A. Plaintiff has sued Defendant alleging Defendant failed to pay certain personal injury protection (PIP) benefits and interest on the same to Orange Park Chiropractic Center, P.A., (as assignee for Charles Mowry).
B. Dr. Dautel, is an employee of Plaintiff and as such treated the Plaintiff’s patient, Charles Mowry. Defendant does not argue (and this Court does not find) that Dr. Dautel, is not an expert. Rather, Dr. Dautel’s role in this case is that of a fact witness rather than that of an “expert” (who requires knowledge of facts and develops opinions in anticipation of litigation).
C. 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 Cs. 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. Co. 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).
D. FURTHERMORE, Florida Rule of Civil Procedure 1.280(b)(4)(C) states “unless manifested justice would result, the Court shall require the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery. . . .” Even if Dr. Dautel is considered an “expert witness,” the Defendant should not be required to pay Dr. Dautel an expert witness fee — to do so would constitute a “manifest injustice.” Dr. Dautel is an agent and employee of the Plaintiff corporation. By accepting the assignment of benefits the Plaintiff corporation put itself in the place of its insured. Plaintiff corporation should not be permitted to bring an assigned PIP case on behalf of its patient and then have its agents or employees paid by the Defendant to testify in a deposition as to why such claim should be paid. Although the Court is unaware of the amount of this PIP claim, many such claims are for an amount less than $100. Requiring a Defendant to pay an expert witness fee, which on many occasions would be more than the amount in controversy, is unjust.
Therefore, it is,
ORDERED AND ADJUDGED that:
1. The Plaintiff’s Motion for Protective Order/Motion to Compel Expert Fee as to Second Amended Notices of Taking Deposition Duces Tecum is DENIED. Dr. Dautel shall appear for deposition without payment of an expert witness fee at a date and time agreed upon by the parties. A copy of this Order shall be served upon Dr. Dautel together with the Subpoena for the Deposition.
2. The Deposition of Dr. Dautel should be taken in his office at an agreed upon date and time. The Court reserves jurisdiction to enter an Order Compelling a date and time if the parties cannot agree.
* * *
