12 Fla. L. Weekly Supp. 229b
Insurance — Personal injury protection — Discovery — Depositions — Expert witness fee — While 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
NORTHEAST FLORIDA NEUROLOGY CLINICS, INC. (as assignee of Archie Kittles), Plaintiff, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 16-2004-SC-003207, Division K. December 1, 2004. Sharon H. Tanner, Judge. Counsel: Patrick J. Snyder, James C. Rinaman, III & 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 19, 2004, on the Plaintiff 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 Northeast Florida Neurology Clinics, Inc., as assignee of Archie Kittles.
2. Dr. Richard Boehme, is an owner of the Plaintiff and a treating physician of the Plaintiff’s patient, Archie Kittles. Defendant does not argue (and this Court does not find) that Dr. Boehme, is not an expert. Rather, Dr. Richard Boehme’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. Richard Boehme 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. Richard Boehme, is DENIED. Dr. Richard Boehme shall appear at a court reporters office for deposition.
* * *
