8 Fla. L. Weekly Supp. 635b
Insurance — Personal injury protection — Insured’s action against insurer — Role of plaintiff’s treating physician in case is that of fact witness, not expert witness — Physician not entitled to payment of expert witness fee — Motion to compel deposition of treating physician without expert fee granted
CLINTON B. MARTIN, Plaintiffs, vs. ARLEEN E. LANDY, and ALLSTATE INDEMNITY COMPANY, Defendants. Circuit Court, 17th Judicial Circuit in and for Broward County. Case No. 99-21340 CACE 03. July 16, 2001. Patti Henning, Judge. Counsel: Wendy Stein, for Dr. Young. Harriett L. Uris, Tolgyesi, Katz, Hankin & Katz, P.A., Hollywood, for Defendant, Allstate Indemnity Company.
ORDER ON DEFENDANT’S MOTION TO COMPELDEPOSITION OF DR. BRUCE YOUNG WITHOUTPAYMENT OF AN EXPERT FEE AND ONDR. YOUNG’S MOTION FOR A PROTECTIVE ORDER
THIS MATTER having come before this Honorable Court upon Defendant’s Motion to Compel the Deposition of Dr. Bruce Young Without Payment of Expert Fee and on Dr. Young’s Motion for a Protective Order, and this Honorable Court having considered the argument of the parties, the record, and being otherwise duly advised of the premises, this Honorable Court finds as follows:
1. Plaintiff sued Defendant alleging that Defendant has failed to pay Personal Injury Protection benefits pursuant to the applicable policy of insurance and Florida Statute Section 627.736.
2. The medical bills of Dr. Bruce Young of Lighthouse Orthopedic Group are at issue in the underlying action.
3. Defendant scheduled Dr. Bruce Young’s deposition.
4. Dr. Young demanded payment of $450.00 per hour for deposition.
5. Defendant subsequently filed its Motion to Depose Dr. Young Without Payment of an Expert Fee.
6. Dr. Young filed a Motion for a Protective Order on this deposition.
7. Dr. Young was the treating orthopedist for the Plaintiff in this matter.
8. Defendant cited this Honorable Court to Kurdian v. State Farm Mutual Auto Insurance Company, 7 Fla. L. Weekly Supp 694(a) (County Court, 17th Judicial Circuit in and for Broward County 2000) and Gonzales v. State Farm Auto Insurance Company, 8 Fla. L. Weekly Supp. 114 (County Court, 11th Judicial Circuit in and for Miami-Dade County 2000); Ryder Truck Rental v. Perez, 715 So. 2d 289 (Fla. 3d DCA 1998); Frantz v. Golebiewsky, 470 So. 2d 283 (Fla. 3d DCA 1981). All these cases held in the context of civil procedure that a Plaintiff’s treating physician is not an expert witness.
9. This Court finds these cases persuasive and to not be in violation of Florida Rule of Civil Procedure 1.390(c) as a treating physician is considered a fact witness. Specifically, the Court concurs with Kurdian v. State Farm Mutual Auto Insurance Company, 7 Fla. L. Weekly Supp. 694(a) (County Court, 17th Judicial Circuit in and for Broward County 2000) and Gonzales v. State Farm Auto Insurance Company, 8 Fla. L. Weekly Supp. 114 (County Court, 11th Judicial Circuit in and for Miami-Dade County 2000).
10. Dr. Bruce Young’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, and Florida Rule of Civil Procedure 1.390(c) is not applicable.
IT IS THEREFORE: ORDERED AND ADJUDGED:
That Dr. Bruce Young’s Motion for Protective Order is denied and Defendant’s Motion to Compel the Deposition of Dr. Bruce Young Without Payment of an Expert Fee is granted. Defendant shall schedule the deposition of Dr. Bruce Young at a mutually agreeable time.
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