In a civil action following remand from the District Court of Appeal, the Circuit Court of St. Lucie County in Florida determined that the deposition responses of the defendant’s medical expert witness were inconsistent with his interrogatory answers. As a result, the Circuit Court granted the production of the expert’s financial records and business records. The defendants appealed.
The Florida District Court of Appeal granted in part the consolidated petitions for writ of certiorari which sought a review of trial court discovery orders.
The appellate court noted in its opinion that following its decision in Brana v. Roura (Fla. 4th DCA 2014), the trial court ruled that the deposition responses of the defense medical expert witness were inconsistent with the interrogatory answers provided by the defendant’s counsel. These inconsistencies focused on the percentage of income the doctor received from working as an expert witness and the number of times he testified in personal injury litigation.
The trial court held that these inconsistencies constituted “the most unusual or compelling circumstances” that allowed production of the expert’s “financial and business records.”
The Florida District Court of Appeal disagreed, holding that the disputed discovery exceeded the provisions of the state’s Rule of Civil Procedure 1.280(b)(5)(A)(iii)4. That rule limits discovery to an approximation of the expert’s involvement as an expert witness. Rule 1.280(b)(5)(A) states:
A party may obtain the following discovery regarding any person disclosed by interrogatories or otherwise as a person expected to be called as an expert witness at trial:
1. The scope of employment in the pending case and the compensation for such service.
2. The expert’s general litigation experience, including the percentage of work performed for plaintiffs and defendants.
3. The identity of other cases, within a reasonable time period, in which the expert has testified by deposition or at trial.
4. An approximation of the portion of the expert’s involvement as an expert witness, which may be based on the number of hours, percentage of hours, or percentage of earned income derived from serving as an expert witness; however, the expert shall not be required to disclose his or her earnings as an expert witness or income derived from other services.
An expert may be required to produce financial and business records only under the most unusual or compelling circumstances and may not be compelled to compile or produce nonexistent documents. Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and other provisions pursuant to subdivision (b)(5)(C) of this rule concerning fees and expenses as the court may deem appropriate.
The Florida District Court of Appeal explained that the defendants and the doctor provided all the required information on the issue of bias. Nonetheless, the trial court allowed the plaintiff to issue subpoenas to 20 non-party insurance carriers—none of whom were shown to have any involvement in the current litigation.
The Court of Appeal opined that discovery from an insurer acting as the defendant’s agent may be proper pursuant to Allstate Insurance Co. v. Boecher (Fla. 1999). The Court also cited to Springer v. West (Fla. 5th DCA 2000), which stated that “[w]here an insurer provides a defense for its insured and is acting as the insured’s agent, the insurer’s relationship to an expert is discoverable from the insured.” However, the plaintiff didn’t present this argument in this proceeding.
The plaintiff’s subpoenas required the production of financial records, including tax records, showing the total amount of fees paid to the doctor for expert litigation services since 2009. This extensive financial discovery as to a retained expert, the appellate court held, exceeded what is allowed by the rule. Hence, it was unnecessary. The per curiam opinion noted that the rule expressly provides that “the expert shall not be required to disclose his or her earnings as an expert witness.”
Here, the alleged inconsistencies didn’t constitute “unusual or compelling circumstances” to warrant such broad financial disclosure. There was no showing that the inconsistencies were the result of falsification, misrepresentation, or obfuscation.
In a per curiam decision, the Court of Appeal held that inconsistencies between deposition responses and interrogatory answers didn’t warrant disclosure of expert’s financial records.
The District Court of Appeal granted in part the consolidated petitions for writ of certiorari seeking review of trial court discovery orders and denied the petition as to the other discovery permitted without discussion.
Grabel v. Roura, 174 So.3d 606, 40 Fla. L. Weekly D2101 (Sept. 9, 2015).