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In Grabel v. Roura, 40 Fla. L. Weekly D2101a (Fla. 4th DCA Sept. 9, 2015), the 4th DCA granted in part three consolidated petitions for writ of certiorari which sought review of the trial court’s discovery orders pertaining to extensive financial discovery requests to expert witness, Dr. Jordan Grabel. 

The trial court found that the deposition testimony of defense expert, Dr. Grabel, concerning the percentage of income he derived from expert witness work and the number of times he had testified for a plaintiff or defendant was “inconsistent” with the responses provided by defense counsel in answers to expert witness interrogatories.  The trial court found that the “inconsistencies” between the defense interrogatory answers and Dr. Grabel’s deposition testimony rose to the level of “unusual or compelling circumstances” which required production of Dr. Grabel’s financial and business records.  Thus, the trial court allowed plaintiff to issue multiple subpoenas to 20 non-party insurance carriers which had no involvement in the litigation.   The subpoenas sought production of financial records detailing the total amount of fees paid to the doctor for expert witness services since 2009.  

On appeal, the 4th DCA disagreed with the decision of the trial court and found that such extensive financial discovery exceeded that which was allowed by F.R.C.P. 1.280(b)(5)(A)(iii)4 which limits discovery to an approximation of the expert’s involvement as an expert witness.  The 4th DCA explained that the rule expressly provides that the expert “shall not be required to disclose his or her earnings as an expert witness.”  Grabel v. Sterrett, 163 So. 3d 704 (Fla. 4th DCA 2015).  The 4th DCA found that there was no evidence that the alleged inconsistencies were the result of falsification, misrepresentation or obfuscation and thus they did not constitute unusual or compelling circumstances to require such a broad financial disclosure from the expert. 


 

This summary was prepared by Meghan Wisenhunt of our firm.


Meghan Wisenhunt

 

 


40 Fla. L. Weekly D2101a

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

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.

(PER 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).

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).

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.

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.

We deny the petition as to the other discovery permitted without discussion.

Petition granted in part. (STEVENSON, LEVINE and FORST, JJ., concur.)

__________________

1. Discovery 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.



 



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