8 Fla. L. Weekly Supp. 114a
Insurance — Personal injury protection — Insured’s action against insurer — Plaintiff’s treating physician not entitled to payment of expert witness fee — Role of physician in case at issue was that of fact witness — Motion to compel deposition of treating physician without expert witness fee granted
ALBERTINO GONZALES, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 99-3476 CC 20 (1). November 9, 2000. Orlando A. Prescott, Judge. Counsel: David M. Sotschin, for Plaintiff. Steven R. Woods, Dickstein, Reynolds & Woods, Fort Lauderdale, for Defendant.
ORDER ON DEFENDANT’S MOTION TO COMPELDEPOSITION OF DR. EDWARD RIVEROWITHOUT EXPERT WITNESS FEE
THIS CAUSE came before the Court on Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY’s, Motion to Compel Deposition of Dr. Rivero Without Payment of an Expert Witness Fee, and the Court having heard argument of counsel, and being otherwise fully advised in the premises, finds as follows:
1. Plaintiff has sued Defendant alleging that Defendant has failed to pay certain personal injury protection (PIP) benefits in accordance with the applicable insurance policy and the Florida no-fault statute. Plaintiff alleges that one of the bills Defendant has not paid is that of Dr. Edward Rivero.
2. Dr. Rivero acted as a treating physician with respect to the Plaintiff. The Defendant does not argue (and this court does not find) that Dr. Rivero is not an expert. Defendant argues that Dr. Rivero’s role in this case is that of a fact witness rather than that of an “expert” which acquired knowledge of facts and developed opinions in anticipation of litigation.
3. Florida law makes a clear distinction between a physician acting as an “expert witness” and a “treating physician”. Ryder Truck Rental v. Perez, 715So.2d 289 (Fla. 3d DCA 1998); Frantz v. Golebiewsky, 407 So.2d 283 (Fla. 3d DCA 1981). Both cases held in the context civil procedure, that a plaintiff’s treating physician was not a “expert witness”.
4. This Court concurs with the Order entered in Broward County Court in Kurdian v. State Farm Mutual Automobile Insurance Company, 7Fla. L. Weekly Supp. 694 (2000), which held that a plaintiff’s treating physician is not entitled to payment of an expert witness fee.
5. Dr. Rivero’s role in this case is that of a fact witness, not an expert witness, therefore he is not entitled to payment of an expert witness fee.
It is therefore,
ORDERED AND ADJUDGED that Defendant’s Motion to Compel Deposition of Dr. Rivero Without Payment of an Expert Witness Fee is GRANTED. Dr. Edward Rivero shall appear for deposition without payment of an expert witness fee at a date, time and location indicated in a properly served subpoena for deposition. A copy of this Order shall be served upon Dr. Edward Rivero together with the subpoena for deposition.
* * *
