12 Fla. L. Weekly Supp. 380a
Insurance — Personal injury protection — Discovery — Depositions — Expert witness fee — Treating physician be treated as ordinary fact witness and will appear for deposition without expert witness fee
REBECCA BURRESS, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division L. Case No. 04-CC-2549. January 14, 2005. Artemeus E. McNeil, Judge. Counsel: Gale L. Young, Gale L. Young, P.A., Tampa. Joseph Littman. Earl I. Higgs, Jr.
ORDER ON RICHARD P. RAGUSO, D.C.’S OBJECTION TO SUBPOENA DUCES TECUM FOR DEPOSITION ANDMOTION FOR PROTECTIVE ORDER
THIS CAUSE came on to be heard before The Honorable Artemeus McNeil on January 10, 2005, upon Richard P. Raguso, D.C.’s Objection To Subpoena Duces Tecum For Deposition And Motion For Protective Order, and the Court having heard argument from counsel for the Defendant and counsel for Richard P. Raguso, D.C., and the Court being otherwise duly advised in the premises, the Court makes the following findings of fact:FACTS:
1. Plaintiff has sued the Defendant alleging that the Defendant has failed to pay certain Personal Injury Protection (“PIP”) benefits according to the terms and conditions of the applicable insurance policy and Florida Stat. § 627.736 et seq.
2. Plaintiff allegedly sought treatment at Gulf Coast Chiropractic Clinic.
3. Treatment at Gulf Coast Chiropractic Clinic is at issue in this case. See Plaintiff’s Notice of Serving Second Amended Verified Answers to Defendant’s Interrogatories, attached as Exhibit A. [Editor’s Note: No attachments submitted with this opinion.]
4. Richard P. Raguso acted as a treating physician of Rebecca Burress. Richard P. Raguso, D.C. possesses factual knowledge gained through his treatment of, and alleged attempts to make Rebecca Burress well.
5. Richard P. Raguso, D.C.’s role in this case is not that of an expert who acquired knowledge of the facts and developed opinions in anticipation of litigation.
6. Richard P. Raguso, D.C. has not been retained as an expert witness and his involvement in, and knowledge of, the facts of this case was gained solely as Rebecca Burress’ treating physician.
ORDERED AND ADJUDGED as follows:
1. Richard P. Raguso, D.C.’s Motion For Protective Order is DENIED.
The Court follows the reasoning as set forth in Ryder Truck Rental v. Perez, 715 So.2d 289 (Fla. 3d DCA 1998) and Frantz v. Golebiewski, 407 So.2d 283 (Fla. 3d DCA 1981).
The Court finds that Dr. Raguso did not acquire his “expert knowledge” for the purpose of litigation, but rather simply in the course of attempting to make Rebecca Burress well. Nor has Dr. Raguso developed his facts or opinions in anticipation of trial. In accordance with the reasons set forth in Frantz, the Court finds that Dr. Raguso is an “actor” and “viewer” of Rebecca Burress’ condition, who will be treated as an ordinary fact witness and will appear for deposition without an expert witness fee.
2. Richard P. Raguso, D.C.’s Objection to the Subpoena Duces Tecum For Deposition is OVERRULED. Dr. Raguso will appear for deposition at the location stated in the notice. Any reference to “testing” in the Subpoena Duces Tecum shall be understood to include any testing performed upon Rebecca Burress at the direction of any physicians associated with Gulf Coast Chiropractic Clinic. The balance of Dr. Raguso’s objections are OVERRULED.
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