9 Fla. L. Weekly Supp. 880a
Insurance — Personal injury protection — Discovery — Depositions — Expert witness fee — Medical provider who accepted an assignment of benefits from insured is entitled to expert witness fee for his deposition
NON-OPERATIVE SPINE, PAIN, & NEUROMUSCULAR CENTER, P.A., as assignee of Maria Bothwell, Plaintiff, vs. ALLSTATE INSURANCE COMPANY, Defendant. County Court, 20th Judicial Circuit in and for Collier County. Case No. 02-1051-SP. October 3, 2002. Lawrence D. Martin, Judge. Counsel: Lorca Divale Divale & Tolentino, P.A., Naples. K. Jack Breiden. Brian Vigness.
ORDER GRANTING PLAINTIFF’S EMERGENCY MOTIONFOR PROTECTIVE ORDER
This cause coming to be heard upon Plaintiff’s Emergency Motion for Protective Order regarding Defendant’s deposition of Dr. Edward Figueroa without payment of expert witness fee, and the Court having considered the record, having heard argument of counsel, and otherwise being duly advised in the premise, it is
ORDERED AND ADJUDGED as follows:
1. Defendant, Allstate Insurance Company, Noticed the Deposition of Edward Figueroa, M.D. to take place on September 24, 2002, 3:00 P.M. at 501 Goodlette Road, Suite B-300, Naples, Florida, regarding the medical treatment and/or diagnostic testing provided to Defendant’s insured. The Defendant had refused to agree to pay Dr. Figueroa any expert witness fee for his testimony because he was the treating physician of the Defendant’s insured and therefore only a fact witness.
2. The Defendant argues that the treating physician is not considered an expert for the purpose of litigation, but merely a fact witness and further day of alleges that Dr. Figueroa is ultimately a party to the lawsuit and therefore not entitled to an expert witness fee.
3. Plaintiff argues that Dr. Figueroa is not a party to this lawsuit, but an employee of the Plaintiff medical clinic and that regardless of Dr. Figueroa’s relation to the Plaintiff he is entitled to an expert witness fee for his deposition.
4. This Court finds that regardless of whether Dr. Figueroa is a pady to this lawsuit or an employee of the Plaintiff, the act of accepting an assignment of benefits from the insured does not strip Dr. Figueroa, the treating doctor, of his entitlement to an expert witness fee as contemplated by Florida Rule of Civil Procedure 1.390(c). Rather, since the Plaintiff and/or Dr. Figueroa has accepted an assignment of benefits from the insured and is therefore standing in the shoes of the insured, Dr. Figueroa is entitled to an expert witness fee for his deposition as he would be entitled if the insured had brought this lawsuit.
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