12 Fla. L. Weekly Supp. 230a
Insurance — Personal injury protection — Discovery — Depositions — Expert witness fee — Although treating physician is expert within meaning of rule 1.390(a), physician is not entitled to expert witness fee where used merely as fact witness
FIRST COAST MEDICAL CENTER, INC., (a/a/o Violette Pierre-Val), Plaintiff, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 16-2003-CC-009920, Division K. November 30, 2004. Sharon H. Tanner, Judge. Counsel: Kelly Hampton, The Gallagher Law Firm, Jacksonville, for Plaintiff. Patrick J. Snyder, Rinaman & Associates, P.A., Jacksonville, for Defendant.
ORDER DENYING PLAINTIFF’S MOTION FOR PROTECTIVE ORDER/MOTION TO SET REASONABLE EXPERT WITNESS DEPOSITION FEE
THIS CAUSE, came to be heard on November 18, 2004, on the Plaintiff’s Motion for Protective Order/Motion to Set Reasonable Expert Witness Deposition Fee. The Court having reviewed the Motion, having heard the argument of counsel, having reviewed the relevant case law and being otherwise fully advised in the premises, finds:
1. Plaintiff has sued Defendant alleging Defendant failed to pay certain personal injury protection (PIP) benefits and interest on same to First Coast Medical Center, as assignee of Violette Pierre-Val.
2. Dr. Grady Carter, is an owner of the Plaintiff and a treating physician of the Plaintiff’s patient, Violette Pierre-Val. Defendant does not argue (and this Court does not find) that Dr. Grady Carter, is not an expert. Rather, Dr. Grady Carter’s role in this case is that of a fact witness rather than that of an “expert”. In contrast to an “examining physician” a treating doctor 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, 285 (Fla. 3d DCA 1981); Ryder Truck Rental, Inc. v. Perez, 715 So. 2d 289, 290-91 (Fla. 3d DCA 1998).
3. 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. Gibson Chiropractic Office v. Progressive Express Ins. Co., 10 Fla. L. Weekly Supp. 907b (4th Judicial Circuit, Duval Cty Ct. September 8, 2003); Ponte Vedra Chiropractic & P.T., Inc. v. Progressive Express Ins. Co., 11 Fla. L. Weekly Supp. 448a (7th Judicial Circuit, St. Johns Cty Ct. February 24, 2004); St. Augustine Physicians Associates, Inc. v. Allstate Indemnity Co., 11 Fla. L. Weekly Supp. 829b (7th Judicial Circuit, St. Johns Cty Ct. June 17, 2004); Orange Park Chiropractic Center, P.A. v. Progressive Express Ins. Co., 11 Fla. L. Weekly Supp. 336b (4th Judicial Circuit, Clay Cty Ct., January 30, 2004); 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); 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). Therefore, it is
ORDERED AND ADJUDGED:
Plaintiff’s Motion to Set Reasonable Expert Witness Deposition Fee is DENIED. Dr. Grady Carter shall appear for deposition without payment of an expert witness fee.
FURTHER ORDERED AND ADJUDGED:
Plaintiff’s Motion for Protective Order, as to the location of the deposition of Dr. Grady Carter, is DENIED. Dr. Grady Carter shall appear at Riley Reporting, 76 South Laura Street, Suite 2100, Jacksonville, Florida 32202, for deposition.
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