39 Fla. L. Weekly D2473b
expert witness — No abuse of discretion in trial court’s denial of orthopedic
center’s motion for protective order where trial court correctly held that
plaintiff in personal injury case was entitled to depose the person from the
orthopedic center with the most knowledge to identify in which cases expert
witness, a physician who worked for and was a shareholder in the orthopedic
center, had testified as an expert witness as opposed to as a treating physician
— No merit in orthopedic center’s claim that plaintiff’s request requires it to
create a document that does not exist — No merit to claim that trial court’s
order violates statutory protection against disclosure of patient information,
because the order does not require any reports regarding patients’ medical
District. Case No. 3D14-988. L.T. Case No. 12-31867. November 26, 2014. An
Appeal from the Circuit Court for Miami-Dade County, Lisa S. Walsh, Judge.
Counsel: Fuerst Itleman David and Joseph and Christopher M. David; Kula &
Samson and Elliott Kula, W. Aaron Daniel and Daniel M. Samson, for appellant.
Gordon & Doner and Cassandra Castellano-Lombard and Gary M. Paige (Davie);
Burlington & Rockenbach and Adam J. Richardson (West Palm Beach), for
denying its motion for protective order. For the reasons that follow, we affirm
the trial court’s order.
Gutierrez (“Gutierrez”) in August 2012, alleging that Gutierrez was negligent
and caused a car accident between the two, resulting in injuries to Park.
Gutierrez hired Dr. Rolando Garcia, a physician with Orthopedic (and also a
shareholder and member of Orthopedic), to conduct a compulsory medical
examination of Parks.
7, 2014. In items 16 and 17 of the schedule attached to the notice, Parks asked
Dr. Garcia to bring to the deposition:
16. Any and all records which identify and document your trial
testimony and deposition testimony for cases involving worker’s compensation and
personal injury claims during the last five (5) years. If no list of such cases
is in existence and if you do not wish to create such a list, please produce all
calendars, diaries, ledgers, indexes, and such other records or documents which
you have in your possession or have access to which reveal cases in which you
have provided testimony in deposition, arbitration, mediation, or at trial for
any cases in the last five (5) years.
17. Any and all records which identify and document any and all CME,
IME or examinations of any type which you have conducted during the last five
(5) years on behalf of insurance companies, law firms, referral services, or
other entities on their behalf. If no list of such CME, IME or examinations are
in existence and if you do not wish to create such a list, please produce all
calendars, diaries, ledgers, indexes and such other records or documents which
you have in your possession or have access to which review all CME, IME or
examinations of any type in which have you have conducted during the last five
cases in which he testified — either at trial or by deposition — for the
immediately-preceding three years. The list comprised approximately 205 names.
Park’s counsel asked Dr. Garcia to identify from the list those individuals for
whom he provided treatment as a patient as opposed to those for whom he
performed an IME or CME.1 The following
Q. And are these — can you just tell me briefly what percentage is
plaintiff, what percentage is defense?
A. I can’t. I can tell you that generally speaking, I would say it’s
probably 70 percent defense, 30 percent plaintiff.
Q. In deposition or in trial?
A. Deposition and in trial.
Q. So your best recollection is that it’s 70 percent defense in
A. I would say so, yes, sir.
Q. And your best estimate is 70 percent defense in trial;
A. That’s correct, yes, sir. . . .
Q. Okay. But I’m talking about the trial testimony, your trial
testimony — do you want to look at these in the last year and tell me if you
recognize the names of any of your patients in there?
A. No. I don’t want to give you the wrong number. I’m going to just
tell you that I cannot give you an estimate. Because I was trying to answer the
question, but now basically, you’re asking me to be more specific and I cannot
give you a specific number. . . .
Q. I’ll just — the lists of the trial testimony that you just gave
me, can you just look at it and tell me if you recognize which of those people
that you recognize — recall as being patients that you treated and had an
ongoing relationship with them as a treating physician? That’s all I want to
know. . . .
THE WITNESS: Yeah, and I’ve mentioned several times, just by looking
at the names, I wouldn’t be able to answer that.
patients he treated (versus individuals on whom he performed IME/CME exams) just
by looking at the names because “[he wouldn’t] know the extent of the treatment
of a specific patient, and in addition to that, usually the trials are regarding
patients that may have been treated in the past, so it could have been a while.”
Dr. Garcia approximated that on a weekly basis he saw approximately 100 patients
and completed about five CMEs.
up with a subpoena for deposition (the “Subpoena”) directed to a representative
of Orthopedic2 with the most knowledge
1. Which of the persons or cases on the lists provided by Dr.
Garcia, attached as Exhibits A & B, were actual patients (not IME exams) of
Non-Party, asserting that: (i) the Subpoena imposed overly burdensome
obligations beyond the scope of Florida Rules of Civil Procedure 1.280 and
1.310, and in violation of Florida law pursuant to Elkins v. Syken, 672
So. 2d 517 (Fla. 1996); and (ii) the Subpoena would require Orthopedic to
violate section 456.057, Florida Statutes (2013), which prohibits the disclosure
of nonparty compulsory medical examination data without prior notice to all of
the affected nonparties.
work Dr. Garcia performed as a retained expert for plaintiffs and as a retained
expert for defendants, as this information went to Dr. Garcia’s potential bias;
(ii) the Subpoena did not place an undue burden or expense on Orthopedic; and
(iii) the discovery request would not result in a violation of section 456.057
because it did not seek any information regarding the patient’s medical
condition or treatment.
intended to permit discovery regarding testimony given by an expert in their
capacity as a retained expert, and that a list which combined cases in which
Dr. Garcia gave testimony as an expert with cases in which Dr. Garcia gave
testimony as a treating physician did not comply with the underlying purpose of
the rule. Thus, the court found that the rule permitted Parks to discover which
of the individuals listed involved cases in which Dr. Garcia served as a
retained expert (as opposed to a treating physician). The trial court entered
its order overruling Orthopedic’s objection to item one of the Subpoena and
is warranted under the circumstances.” Smith v. S. Baptist Hosp. of Fla.,
564 So. 2d 1115, 1118 (Fla. 1st DCA 1990). Therefore, while the court’s factual
findings will not be disturbed absent an abuse of discretion, Alvarez v.
Cooper Tire & Rubber Co., 75 So. 3d 789, 793 (Fla. 4th DCA 2011), we
review de novo the court’s interpretation and application of Rule 1.280
and section 456.057, Pino v. Bank of N.Y., 121 So. 3d 23, 31 (Fla. 2013)
period in which he testified either at trial or by deposition, either as a
retained expert witness or a treating physician; and
of his work for both defendants and plaintiffs.
suggestion that Dr. Garcia was falsifying, misstating or obfuscating — is
unauthorized under rule 1.280 and Elkins. It further asserts that the
ordered discovery violates section 456.057, which protects against the
disclosure of patient information. We find neither argument persuasive.
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
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
Court’s decision in Syken v. Elkins, 644 So. 2d 539 (Fla. 3d DCA 1994),
and adopted the district court’s established criteria governing the discovery of
financial information from expert witnesses:
1. The medical expert may be deposed either orally or by written
2. The expert may be asked as to the pending case, what he or she
has been hired to do and what the compensation is to be.
3. The expert may be asked what expert work he or she
generally does. Is the work performed for the plaintiffs, defendants, or
some percentage of each?
4. The expert may be asked to give an approximation of the portion
of their professional time or work devoted to service as an
expert. This can be a fair estimate of some reasonable and truthful
component of that work, such as hours expended, or percentage of income earned
from that source, or the approximate number of IME’s that he or she performs in
one year. The expert need not answer how much money he or she earns as an expert
or how much the expert’s total annual income is.
5. The expert may be required to identify specifically each
case in which he or she has actually testified, whether by deposition or at
trial, going back a reasonable period of time, which is normally three
years. A longer period of time may be inquired into under some
6. The production of the expert’s business records, files, and
1099’s may be ordered produced only upon the most unusual or compelling
7. The patient’s privacy must be observed.
8. An expert may not be compelled to compile or produce nonexistent
opinion strikes a reasonable balance between a party’s need for information
covering an expert witness’s potential bias and the witness’s right to be free
from burdensome and intrusive production requests.” Elkins, 672 So. 2d at
by “the expert,” and require “the expert” to specifically identify those cases
in which he has testified by deposition or trial. It logically follows from this
that a party is entitled to discover those cases in which the expert testified
as an expert. In fact, the third and fourth criteria identified in
Elkins (and the second and fourth criteria set forth in the rule)
expressly contemplate such discovery. Though Dr. Garcia provided an expansive
list of persons or cases in which he testified by deposition or trial, covering
testimony provided both as a retained expert and as a treating physician, he was
unable to differentiate those cases in which he testified “as an expert” from
those cases in which he testified as a treating physician. Such a distinction is
relevant and could prove significant in assessing potential bias.
cases in which he testified or gave a deposition, approximately 70% were on
behalf of the defense and 30% were on behalf of the plaintiff. Later in the
deposition, however, when asked to identify only those cases in which he gave
testimony as an expert witness (rather than testimony given as a treating
physician), Dr. Garcia was unable to do so, eventually disclaiming the original
estimated percentages of plaintiff and defense work. As a result, the trial
court determined that the Parks was entitled to depose the person from
Orthopedic with the most knowledge to identify which names or cases on the list
involved Dr. Garcia’s testimony as an expert witness (as opposed to testimony as
a treating physician). We find no abuse of discretion in the trial court’s
factual determinations in this regard. We also conclude that the trial court
correctly applied rule 1.280 and the underlying purpose of the rule in light of
the factual circumstances presented.
of Civil Procedure 1.280 . . . provide ‘reasonable latitude for inquiry about
the extent of a trial expert’s alignment with one side, or another.’ ”
Sanchez v. Nerys, 954 So. 2d 630, 631 (Fla. 3d DCA 2007). We do not find
an abuse of discretion in the trial court’s decision to deny Orthopedic’s motion
for protective order where Parks’ discovery requests sought nothing more than a
differentiation between Dr. Garcia’s relevant work “as an expert” and his other
work as a treating physician.5
expert testimony v. treating physician testimony), it might well be inaccurate
for Dr. Garcia to be permitted to maintain, and to require Parks to accept, the
equivocal and undifferentiated estimates provided by during Dr. Garcia’s
deposition. A single hypothetical should clarify this point:
(for ease of calculation) in which Dr. Garcia provided testimony either as a
retained expert witness or as a treating physician.
testimony for the plaintiff, either as a retained plaintiff’s expert
or as a treating physician. The remaining 70 percent (140) would
represent cases in which Dr. Garcia testified as a retained defense expert. One
could conceivably argue that these percentages (70 percent defense, 30 percent
plaintiff) reveal some potential bias or alignment as an expert witness.
between testimony given as a retained plaintiff’s expert versus testimony given
as a treating physician) it is determined that of the 30 percent (60 cases) in
which Dr. Garcia provided testimony “for the plaintiff,” every single one of
those 60 cases involved testimony provided by Dr. Garcia as a treating
physician. In other words, 100 percent of the cases in which Dr. Garcia
testified “for the plaintiff” was testimony provided as a result of his
relationship as the plaintiff’s treating physician, and there were no cases on
the list in which he testified “for the plaintiff” as a result of being retained
as an expert witness for the plaintiff.
would have a 100/0 split, because the hypothetical differentiated list reveals
that in every single case in which Dr. Garcia testified as a retained
expert (140 out of 200 cases), he did so only on behalf of the defense.
The remaining 60 cases involved testimony provided not as a plaintiff’s retained
expert, but rather as a result of treatment and care provided as each
plaintiff’s treating physician. Though of course we have no way of knowing
whether or how the actual percentages will be affected by this differentiation,
it is clear that Parks was entitled to seek this information to further discover
the extent of any potential bias.
require it to create a document that does not exist. See Orkin
Exterminating Co. v. Knollwood Props., Ltd., 710 So. 2d 697 (Fla. 5th DCA
Statutes (2014), which protects against the disclosure of patient information.
This statute concerns the control of patient records and provides:
Except as otherwise provided in this section . . ., such records may
not be furnished to, and the medical condition of a patient may not be discussed
with, any person other than the patient or the patient’s legal representative,
or other health care practitioners involved in the patient’s care or treatment,
except upon written authorization from the patient. However, such records may be
furnished without written authorization under the following
. . .
3. In any civil or criminal action, unless otherwise prohibited by
law, upon the issuance of a subpoena from a court of competent jurisdiction and
proper notice to the patient or the patient’s legal representative by the party
seeking such records.
not implicate section 456.057 as it does not require Orthopedic to provide any
reports or any information regarding the patients’ medical conditions. Further,
it was Dr. Garcia who provided Parks with the names of certain patients, by
producing the undifferentiated list at his deposition. The trial court’s order
simply requires Orthopedic to review the list previously provided by Dr. Garcia,
and to differentiate the names of patients treated by Dr. Garcia from the names
of individuals upon whom Dr. Garcia performed an IME or CME as a retained
Examination” and CME is short for “Compulsory Medical Examination.”
appearance of the witness with the most knowledge regarding: “Which of the
persons or cases on the lists provided by Dr. Garcia, attached as Exhibit A
involve depositions given by Dr. Garcia in worker’s compensation cases, and
which were depositions given in personal injury/liability cases.” The trial
court, however, denied this request, and this issue is not before us on appeal.
criteria be made part of the commentary to Florida Rule of Civil Procedure
work as a treating physician could never be relevant or discoverable. For
example, where the expert is considered a “plaintiff’s expert” the defense might
properly seek discovery regarding the number and percentage of cases in which
the plaintiff’s attorney refers a client to the expert for purposes of medical
treatment. See e.g., Steinger, Iscoe & Greene, P.A. v. Geico Gen.
Ins. Co., 103 So. 3d 200 (Fla. 4th DCA 2012). We also do not ignore the fact
that a plaintiff’s treating physician may often be characterized as a “hybrid”
expert, in that such a witness may be providing testimony on the plaintiff’s
medical history and course of treatment, while also offering opinions regarding
future medical treatment and permanency.
* * *