12 Fla. L. Weekly Supp. 591a
Insurance — Personal injury protection — Discovery — Depositions — Expert witness fee — Treating physician is not entitled to expert witness fee for deposition testimony where insurer did not go beyond scope of CPT code issue and treatment rendered to insured
FIRST CHOICE MEDICAL CENTER AS ASSIGNEE OF CARMEN MARTINEZ, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 03-SC-000531. March 21, 2005. John R. Sloop, Judge. Counsel: Fotini Z. Manolakos, Thompson Goodis Thompson Groseclose & Richardson, P.A., St. Petersburg. Michael B. Brehne.
ORDER DENYING PLAINTIFF’S MOTION FOR PAYMENT OF EXPERT WITNESS FEE
THIS CAUSE having come on before the Court on September 22, 2004 on Plaintiff’s Motion for Payment of Expert Witness Fee, and the Court having heard argument of Counsel and being otherwise fully advised in these premises, makes the following findings of fact and conclusions of law;
FINDINGS OF FACT
1. The Plaintiff has sued the Defendant alleging that the Defendant has failed to pay certain Personal Injury Protection (“PIP”) benefits in accordance with the applicable insurance policy and the Florida Statute § 627.736 et. seq.
2. Plaintiff alleged that one of the medical bills the Defendant failed to pay, is that of Dr. Libert, a physician who treated Carmen Martinez.
3. Defendant set the deposition of Dr. Libert and Dr. Libert requested a prepaid expert witness fee of six hundred dollars ($600.00) per hour.
4. This Court granted Defendant’s Motion to Compel Deposition of Treating Physician Without Expert Witness Fee and Dr. Libert’s deposition took place on November 18, 2003.
5. The Court ruled that Dr. Libert’s role in this case was not that of an expert who acquired knowledge of the facts and developed opinions in anticipation of litigation but rather Dr. Libert possessed factual knowledge gained through his treatment of the insured, Carmen Martinez.
6. Plaintiff now requests the Court review the deposition testimony of David Libert, M.D. and assess, if applicable, an expert witness fee for his testimony.
CONCLUSIONS OF LAW
7. Florida law recognizes a clear distinction between a physician witness testifying as a treating physician as contrasted by a witness testifying as an expert retained for the purpose of litigation. Ryder Truck Rental v. Perez, 715 So.2d 289 (Fla. 3d DCA 1998); Frantz v. Golebiewsky, 407 So.2d 283 (Fla. 3d DCA 1981). Both cases hold that a Plaintiff’s treating physician is not an “expert witness”, but rather, a fact witness, and consequently should not be entitled to an expert witness fee.
8. In Ryder Truck Rental v. Perez, 715 So.2d 289 (Fla. 3d DCA 1998), the Third District Court of Appeals held that treating physicians should not have been classified as expert witnesses, but as ordinary fact witnesses. Id. at 291. While a treating doctor is unquestionably an expert, they do not acquire their expert knowledge for the purpose of the litigation. Frantz v. Golebiewsky, 407 So.2d 283 (Fla. 3d DCA 1981); and the Defendant should not be required to pay them any expert witness fee.
9. The Third District Court in Frantz v. Golebiewsky, supra, held “[i]t seems clear that Dr. Rubelman and any other practitioner who has treated the plaintiff is just such an “actor” in the case and “viewer” of her condition who is to be “treated as an ordinary witness”. Id. (emphasis added).
10. Florida County Courts have likewise held in PIP cases that treating physicians are to be treated as ordinary fact witnesses, and are not entitled to payment of an expert witness fee. See e.g. Peter J. Godleski, M.D., P.A. (Laguerre) v. Progressive Express Insurance Company, 11 Fla. L. Weekly Supp. 584a (Fla. Seminole County Ct. 2004), Gonzales v. State Farm Mutual Insurance Company, 8 Fla. L. Weekly Supp. 114a (Fla. Dade County Ct. 2000); Rios v. Allstate Insurance Company, 8 Fla. L. Weekly Supp. 660b (Fla. Broward County Ct. 2001); Martin v. Landy and Allstate Indemnity Company, 8 Fla. L. Weekly Supp. 635b (Fla. Broward County Ct. 2001); Kurdian v. State Farm, 7 Fla. L. Weekly Supp. 694a (Fla. Broward Circuit Ct. 2000); Roberto Aria, D.C. v. Metropolitan Insurance Company, 9 Fla. L. Weekly Supp. 488b (Fla. Orange County Ct. 2002); Richard Leverone, D.C. v. Liberty Mutual Insurance Company, 9 Fla. L. Weekly Supp. 51a (Fla. Pinellas County Ct. 2001); Non-Operative Spine, Pain & Neuromuscular Center v. Allstate Insurance Company, 9 Fla. L. Weekly Supp. 880a (Fla. Collier County Ct. 2002); R.J. Trapana, M.D., P.A. v. Progressive Express Insurance Company, 10 Fla. L. Weekly Supp. 266b (Fla. Broward County Ct. 2003).
11. In Kurdian v. State Farm, 7 Fla. L. Weekly Supp. 694a (Fla. Broward Circuit Ct. 2000), the Court explains its denial of an expert witness fee to a treating physician and also discusses that as a policy consideration it would not favor payment of an expert witness fee to a treating physician when the charges of the treating physician are an issue.
12. Policy considerations likewise weigh against requiring payment of an expert witness fee to a treating physician in a PIP case. This is because the treating physician’s testimony will be completely self-serving, in an effort to justify their own actions, which is exactly what is being questioned in this particular case. See Kurdian v. State Farm, 7 Fla. L. Weekly Supp. 694a (Fla. Broward County Ct. 2000).
Upon the Court’s review of Dr. Libert’s deposition transcript it is, ORDERED and ADJUDGED that Plaintiff’s Motion for Payment of Expert Witness Fee is DENIED. Dr. Libert is not entitled to an expert witness fee for his deposition since the Defendant did not go beyond the scope of the CPT codes at issue and the treatment that was rendered to Carmen Martinez.
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