40 Fla. L. Weekly D2101aTop of Form
Torts
— Civil procedure — Discovery — Expert witness — Financial and business
records — Inconsistencies between deposition responses of defense expert
witness and interrogatory answers provided by defense counsel with respect to
percentage of income the expert derived from working as an expert witness and
the number of times expert had testified for plaintiffs and defendants in
personal injury litigation did not constitute “unusual or compelling
circumstances” to warrant the extensive financial discovery permitted by trial
court — Discovery exceeded that allowed by rule
— Civil procedure — Discovery — Expert witness — Financial and business
records — Inconsistencies between deposition responses of defense expert
witness and interrogatory answers provided by defense counsel with respect to
percentage of income the expert derived from working as an expert witness and
the number of times expert had testified for plaintiffs and defendants in
personal injury litigation did not constitute “unusual or compelling
circumstances” to warrant the extensive financial discovery permitted by trial
court — Discovery exceeded that allowed by rule
JORDAN
GRABEL, M.D., KRISTINA MICHELLE BRANA, and ROSCOX CORPORATION, Petitioners, v.
ADOLFO ROURA, Respondent. 4th District. Case Nos. 4D15-194 & 4D15-199.
September 9, 2015. Consolidated petitions for writ of certiorari to the Circuit
Court for the Nineteenth Judicial Circuit, St. Lucie County; Dwight L. Geiger,
Judge; L.T. Case No. 562012CA002123. Counsel: Ian E. Robinson of Adams |
Coogler, P.A., West Palm Beach, for petitioner, Jordan Grabel, M.D. Carri S.
Leininger of Williams, Leininger & Cosby, P.A., North Palm Beach, for
petitioners Kristina Michelle Brana and Roscox Corporation. Bard D. Rockenbach
of Burlington & Rockenbach, P.A., West Palm Beach, Ronald M. Rowars of
Ronald M. Rowars, P.A., Port St. Lucie, and Andy M. Custer of Custer ~
McGovern, Lake Worth, for respondent.
GRABEL, M.D., KRISTINA MICHELLE BRANA, and ROSCOX CORPORATION, Petitioners, v.
ADOLFO ROURA, Respondent. 4th District. Case Nos. 4D15-194 & 4D15-199.
September 9, 2015. Consolidated petitions for writ of certiorari to the Circuit
Court for the Nineteenth Judicial Circuit, St. Lucie County; Dwight L. Geiger,
Judge; L.T. Case No. 562012CA002123. Counsel: Ian E. Robinson of Adams |
Coogler, P.A., West Palm Beach, for petitioner, Jordan Grabel, M.D. Carri S.
Leininger of Williams, Leininger & Cosby, P.A., North Palm Beach, for
petitioners Kristina Michelle Brana and Roscox Corporation. Bard D. Rockenbach
of Burlington & Rockenbach, P.A., West Palm Beach, Ronald M. Rowars of
Ronald M. Rowars, P.A., Port St. Lucie, and Andy M. Custer of Custer ~
McGovern, Lake Worth, for respondent.
(PER
CURIAM.) We grant in part these consolidated petitions for writ of certiorari
seeking review of trial court discovery orders.
CURIAM.) We grant in part these consolidated petitions for writ of certiorari
seeking review of trial court discovery orders.
Following
our decision in Brana v. Roura, 144 So. 3d 699 (Fla. 4th DCA 2014), the
trial court determined that the deposition responses of Dr. Jordan Grabel, the
defense expert witness, were inconsistent with the interrogatory answers
provided by defense counsel. The inconsistencies concerned the percentage of
income the doctor derives from working as an expert witness and the number of
times he has testified for plaintiffs and defendants in personal injury
litigation. The trial court concluded that these inconsistencies constituted
“the most unusual or compelling circumstances” that allowed production of the expert’s
“financial and business records.” See Fla. R. Civ. P.
1.280(b)(5)(A)(iii).
our decision in Brana v. Roura, 144 So. 3d 699 (Fla. 4th DCA 2014), the
trial court determined that the deposition responses of Dr. Jordan Grabel, the
defense expert witness, were inconsistent with the interrogatory answers
provided by defense counsel. The inconsistencies concerned the percentage of
income the doctor derives from working as an expert witness and the number of
times he has testified for plaintiffs and defendants in personal injury
litigation. The trial court concluded that these inconsistencies constituted
“the most unusual or compelling circumstances” that allowed production of the expert’s
“financial and business records.” See Fla. R. Civ. P.
1.280(b)(5)(A)(iii).
We
disagree. The disputed discovery exceeds the provisions of rule
1.280(b)(5)(A)(iii)4, which limits discovery to an approximation of the
expert’s involvement as an expert witness. See Grabel v. Sterrett, 163
So. 3d 704 (Fla. 4th DCA 2015) (quashing improper expert discovery directed at
this same doctor).
disagree. The disputed discovery exceeds the provisions of rule
1.280(b)(5)(A)(iii)4, which limits discovery to an approximation of the
expert’s involvement as an expert witness. See Grabel v. Sterrett, 163
So. 3d 704 (Fla. 4th DCA 2015) (quashing improper expert discovery directed at
this same doctor).
The
defendants and the doctor provided all the information required on the issue of
bias. The court nevertheless allowed plaintiff to issue subpoenas to twenty
non-party insurance carriers, not shown to have any involvement in this
litigation.1 The subpoenas require 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 exceeds that allowed by the rule
and is unnecessary. The rule expressly provides that “the expert shall not be
required to disclose his or her earnings as an expert witness.” Id.
defendants and the doctor provided all the information required on the issue of
bias. The court nevertheless allowed plaintiff to issue subpoenas to twenty
non-party insurance carriers, not shown to have any involvement in this
litigation.1 The subpoenas require 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 exceeds that allowed by the rule
and is unnecessary. The rule expressly provides that “the expert shall not be
required to disclose his or her earnings as an expert witness.” Id.
Here,
the alleged inconsistencies do not constitute “unusual or compelling
circumstances” to warrant such broad financial disclosure. See Buck v. Chin,
19 So. 3d 1132, 1134 (Fla. 3d DCA 2009). There is no showing that the
inconsistencies are the result of falsification, misrepresentation, or
obfuscation. See id.
the alleged inconsistencies do not constitute “unusual or compelling
circumstances” to warrant such broad financial disclosure. See Buck v. Chin,
19 So. 3d 1132, 1134 (Fla. 3d DCA 2009). There is no showing that the
inconsistencies are the result of falsification, misrepresentation, or
obfuscation. See id.
We
deny the petition as to the other discovery permitted without discussion.
deny the petition as to the other discovery permitted without discussion.
Petition
granted in part. (STEVENSON,
LEVINE and FORST, JJ., concur.)
granted in part. (STEVENSON,
LEVINE and FORST, JJ., concur.)
__________________
1Discovery from
an insurer acting as the defendant’s agent may be proper pursuant to Allstate
Insurance Co. v. Boecher, 733 So. 2d 993, 996 (Fla. 1999). See Springer
v. West, 769 So. 2d 1068, 1069 (Fla. 5th DCA 2000) (“Where 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,
no such argument has been presented in this proceeding.
an insurer acting as the defendant’s agent may be proper pursuant to Allstate
Insurance Co. v. Boecher, 733 So. 2d 993, 996 (Fla. 1999). See Springer
v. West, 769 So. 2d 1068, 1069 (Fla. 5th DCA 2000) (“Where 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,
no such argument has been presented in this proceeding.
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