Written by attorney Matthew A. Dolman

The Latest on the Changing Discovery Landscape in Florida

Recently, Personal Injury Attorney’s in Florida have been fighting to maintain access to cost-effective litigation for their clients. Anyone who has been the Plaintiff in a case that entered litigation knows that the costs of trying a case are often extremely high. Most attorney’s do everything they can to keep those costs down, so that a client walks away with the compensation they deserve for the injuries that they’ve suffered.

But some costs cannot be avoided. To take a personal injury case to trial, a plaintiff needs to obtain the services of a doctor who can testify as an expert witness. This testimony is essential to prove the extent of injuries that the plaintiff suffered as a result of the accident. Quite often the plaintiff can use one of his or her own treating physicians to testify in this manner. The courts have taken to calling these treating/expert witnesses as “hybrid witnesses". This type of expert often offers further insight into the plaintiff’s background and can make for a better witness at trial. The cost of paying this witness to take the time to testify for the plaintiff is an essential part of properly litigating a personal injury case.

The law has rules concerning how much of this sort of information an attorney can access during pre-trial discovery. Florida Rule of Civil Procedure 1.280 lays out those rules, specifically addressing expert witnesses in subsection 4. The rule specifically states:

“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."

The legislation had various reasons for limiting this type of discovery when dealing with expert witnesses. In the 1995 case ofElkins v. Syken, the Florida Supreme Court cited a need to “…balance between a party’s need for information concerning an expert witness’s potential bias and the witness’s right to be free from burdensome and intrusive production requests." Information concerning financial and business information of experts is sought solely for the purpose of impeaching the witness’s credibility. Requests for this type of information are often extremely burdensome, infringe on various issues of doctor-patient and attorney-client privileges, significantly increase the cost of discovery placed on the expert witness and the plaintiff, and can be used to harass or embarrass witnesses and plaintiffs. Further, they are part of a greater effort to make this process as cost prohibitive for injury law attorneys and plaintiffs alike. The Court in Elkins sought to allow but limit such discovery because of its concerns that in the absence of reasonable limits, qualified experts “may not be willing to participate in the judicial process" and that discovery may become so unnecessarily and unduly burdensome that a plaintiff’s access to justice would be infringed upon.

The reach of the new rules created by Elkins was extended in the 1999 Supreme Court case Allstate Insurance Co. v. Boecher. The Court in that case extended a plaintiff’s right to obtain information about the past relationship of the defense’s expert witness and the party to the action. The Court used this explanation of financial bias to explain why the relationship between a defense expert and the defendant is discoverable:

“The more extensive the financial relationship between a party and a witness, the more it is likely that the witness has a vested interest in that financially beneficial relationship continuing."

Then, in the 2000 case of Springer v. West, Florida Courts expanded FLRCP 1.280 to include allowance for discovery concerning an expert’s financial bias displayed by the past monetary relationships between the defense expert, the defendant’s attorney and the insurance carrier who pays for the attorney. The 5th Circuit Court in Springer stated:

“Since the defendant relies on his or her insurer and insurer-appointed lawyer to employ necessary witnesses, it is the relationship between those parties and the experts which is critical to the question of bias on the part of the witness."

Since the ruling in Springer Florida Courts have been continuously increasing the weight of discovery placed on plaintiffs in personal injury cases. In the 2001 2nd District case of Morgan, Colling & Gilbert, P.A. v. Pope, the Court decided that the sake of fairness required that financial relationships between plaintiff’s counsels and their experts also be subject to limited discovery. While this ruling was clearly in the best interest of justice, it opened the Pandora’s Box of rulings expanding the defendant’s right to discovery that have followed.

The 2011 4th Circuit case, Katzman v. Rediron Fabrication, Inc., marked the biggest expansion of expert witness discovery since Elkins. The Court in Katzman expanded the scope of permissible discovery with the “hybrid"-type witness so commonly used in personal injury trials. Dr. Katzman’s use of an expensive and “allegedly controversial outpatient surgical procedure" was called into question by the defense on three points. First, that the surgery and other services Dr. Katzman provided were done pursuant to a letter of protection agreement that he would be paid out of the proceeds of the lawsuit; second, that the procedure was recommended significantly more frequently in cases involving litigation; and third, that his charges for the procedure were inflated in litigation cases. The Court decided that the three defense points, combined with the questionability of the procedure constituted “the most unusual or compelling circumstances" required by FLRCP 1.280 to justify the discovery of financial and business records of doctors. The explanation for the decision was:

“In this case, the discovery that is sought is not relevant merely to show that the witness is biased based on an ongoing financial relationship with a party or lawyer. We agree that Elkins discovery should generally provide the sufficient discovery into such financial bias. The discovery here is relevant to a discreet issue, whether the expert has recommended an allegedly unnecessary and costly procedure with greater frequency in litigation cases, and whether the expert, as a treating physician, allegedly overcharged for the medical services at issue in the lawsuit."

The Katzman Court stated that the need for the intrusion into Dr. Katzman’s financial and business records was justified by the need for case-specific information relevant to the substantive issues in litigation. Because of the ruling, Dr. Katzman was required to produce an extremely burdensome amount of information to the Defendant including:

(1) (a) all amounts that he collected from health insurance coverage on an annual basis for the preceding four years regarding the type of surgery at issue in the case; (b) the number of patients he performed said procedure on under health insurance coverage during those four years; (c) the amount received from health insurers for each surgery performed during those four years;

(2) (a) all amounts that he collected under letters of protection received from attorneys on an annual basis for the preceding four years regarding the type of surgery at issue in the case; (b) the number of patients he performed said procedure on under letters of protection during those four years; (c) the amount received from each case involving a letter of protection for each surgery performed during those four years;

This required production was extensive and extremely taxing on the former expert witness. The Court thought it necessary to comment on the extension of discovery in the decision by saying:

“We expect that trial judges will exercise their discretion carefully when circumstances require discovery in excess ofElkins and not allow the exception to swallow the rule. Trial courts should not allow discovery from hybrid experts to become a tactical litigation weapon to harass the witness, the party, or the law firm(s)."

Unfortunately, the fears expressed by the Katzman Court at the end of their decision were absolutely justified. Just months after the late 2011 decision, defense attorneys across the state have begun seeking discovery involving letters of protection and billing practices in cases without the substantive facts that were at issue in Katzman. Plaintiff’s costs will increase because of these increased production requests. Hopefully, the Court’s will take a stand to prevent this injustice and protect the plaintiff’s right to access the system of justice.

Personal Injury attorneys statewide are eyeing cases like Crable v. State Farm Mutual Automobile Insurance Company. The Defense in Crable is seeking to define another set of circumstances justifying the extensive discovery of financial and business records of hybrid witnesses. In Crable, Dr. Ara Deukmedjian performed an expensive surgical procedure on the Plaintiff under a letter of protection (similarly to Katzman). While a disparity between the amount billed by the hybrid witness and the amount collected on surgical cases is at issue in Crable no disparity between the use of the surgery in litigation and non-litigation cases has been suggested.

The trial judge in Crable has granted the Defense’s motions to compel the discovery of Dr. Deukmedjian’s financial and business records suggesting that the guidelines set out in Katzman were either/or requirements, rather than a requirement that both billing disparities and prevalence of the surgery disparity between litigation and non-litigation cases be present to justify to extensive discovery. This questionable ruling may have devastating effects if it is not overturned due to the decreased burden on the requesting party. And the defense in Crable has gone even farther, requesting information and documents concerning the law firm that previously represented Ms. Crable. The judge has allowed the rule in Katzman to expand even further.

-Matthew A. Dolman, Esq.


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