11 Fla. L. Weekly Supp. 127c
Insurance — Personal injury protection — Discovery — Depositions — Expert witness fee — Treating physician is not entitled to expert witness fee for deposition testimony unless insurer strays from fact questions
RICHARD RENEDO, Plaintiff, v. METROPOLITAN CASUALTY INSURANCE COMPANY, a foreign corporation, Defendant. County Court, 6th Judicial Circuit in and for Pinellas County. Small Claims/Civil Divisions. Case No. 00-002915-SC. July 2, 2001. Robert J. Morris, Jr., Judge. Counsel: Eduardo Latour, Tarpon Springs. Gale Young, Gale Young, P.A., St. Petersburg. John M. Della Costa, Jr., St. Petersburg.
ORDER
THIS CAUSE came on to be heard this day pursuant to Motion for Protective Order and Motion for Deposition Fees filed by Jeffrey L. Tedder, M.D. (“Tedder”). This court, after hearing the arguments of counsel for Defendant Metropolitan Casualty Insurance Company and counsel for Tedder, (counsel for Plaintiff, who was duly noticed, elected not to appear for this hearing) and being otherwise duly advised in the premises, hereby
ORDERS and ADJUDGES as follows:
FACTS OF RECORD
Defendant Metropolitan Casualty Insurance Company, on April 30, 2001, noticed Tedder for deposition duces tecum to be taken at 1:30 a.m. on May 30, 2001. On May 30, 2001 at 11:36 a.m. Tedder filed the subject motion. The deposition was subsequently cancelled voluntarily by Defendant.
By his Motion, Tedder seeks to limit Defendant’s deposition questions to “the care and treatment of the Plaintiff” only. Fact questions. Moreover, Tedder’s Motion seeks to preclude Defendant from asking questions regarding “billing practices, propriety, contractual information, community standards, staffing, office procedures, billing comparisons to other physicians, or other contracts”. Some of these are opinion questions.
Plaintiff’s Complaint seeks to recover damages from Defendant because of Defendant’s refusal to pay Tedder’s bills pursuant to an automobile accident which involved Plaintiff on June 28, 1999. Certainly Tedder’s billings to Plaintiff, as well as his care and treatment, are in issue.
APPLICABLE LAW
It is well settled that discovery is not objectionable “if the information sought appears to be reasonably calculated to lead to the discovery of admissible evidence”. Rule 1.280(b)(1), The Rules of Civil Procedure (2000). The subject matter Tedder seeks to have Defendant prohibited from inquiring about is the subject of appropriate inquiry as it is calculated to lead to discoverable evidence, and bears on the issues framed by the pleadings in this case.
On the issue of expert witness fees, this court is guided by the decisions in Kurdian v. State Farm, 7 Fla. L. Weekly Supp. 694 (Broward County Court June, 2000) and Gonzales v. State Farm, 8 Fla. L. Weekly Supp. 114 (Dade County Court November 9, 2000). These cases hold that a treating physician is not an expert witness but instead a fact witness and therefore not entitled to an expert witness fee pursuant to Rule 1.390(c) Florida Rules of Civil Procedure.
However, if Defendant strays from fact questions and, instead, asks Tedder questions seeking his expert opinion, Defendant may inadvertently convert Tedder to an expert witness by virtue of such questions. If this happens, Tedder may lay claim to the fee entitlement contemplated by Rule 1.390(c) upon a motion timely made after the deposition.
Accordingly, Tedder’s Motion is hereby DENIED.
* * *
