10 Fla. L. Weekly Supp. 384a
Insurance — Personal injury protection — Discovery — Production of documents — Challenge to order requiring insurer denying claim for cervical videofluoroscopy to produce every peer review and independent medical examination report, recommendation, or opinion to insurer generated by IME physician concerning medical provider’s videofluoroscopy for last three years — Requested information is not irrelevant since purpose is to show possible bias of IME physician — Discovery order is not overly burdensome where trial court required production of only those reports that insurer already possesses, narrowed the request, and left door open for insurer to request relief after good faith effort — IME physician’s willingness to admit on stand to 99.9% denial rate does not render requested production unnecessary where in deposition testimony IME physician was unable to offer specific numbers of reports or to support the idea that he had even once found test medically necessary and denied keeping copies of his reports such that cross-examination of IME physician would not be adequate substitute for production of reports — Petition for writ of certiorari dismissed
STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., Petitioner, v. NU-BEST DIAGNOSTIC LABS, INC., ASSIGNEE FOR JOEL PACKARD, Respondent. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case No. 2001-CA-6966-0. Writ No. 01-47. March 25, 2003. Petition for Writ of Certiorari. Counsel: Donald J. Masten, Orlando, for Petitioner. Bob Shea, Winter Park.
(Before WHITEHEAD, RODRIGUEZ, and RUSSELL, JJ.)
ORDER DISMISSING PETITION FOR WRIT OF CERTIORARI
(PER CURIAM.) Petitioner, State Farm Mutual Automobile Insurance Company (“State Farm”), seeks certiorari review of a discovery order rendered by the trial court.
Joel Packard sought personal injury protection (“PIP”) benefits from State Farm as a result of an auto accident that occurred on February 8, 1999. This dispute is about the bill submitted to State Farm by Packard’s assignee, Nu-Best Diagnostic Labs (“Nu-Best”), for a cervical video fluoroscopy (motion x-ray). State Farm hired Dr. Michael Dunn to give his opinion on whether the test performed by Nu-Best was medically necessary. When Dr. Dunn concluded that the test was not medically necessary, State Farm denied payment.
Nu-Best then filed this lawsuit in Orange County Court. During discovery, Nu-Best requested that State Farm produce many documents. At issue here is request #2, which asked for “[e]very peer review and IME report, recommendation, or opinion to or for State Farm Mutual Automobile Insurance Company concerning Nu-Best from [Dr.] Michael Dunn for the last three years.” In an order dated January 24, 2001, the trial court overruled State Farm’s objection to that request. However, in response to State Farm’s subsequent motion, the trial court granted rehearing.
In a hearing held April 3, 2001, State Farm argued that complying with the request would be overly burdensome, would invade patients’ privacy, would compromise attorney/client work product, and generally would produce irrelevant information. State Farm also argued that the requested production would be unnecessary, because Nu-Best already obtained Dr. Dunn’s deposition testimony, in which he admitted that he recommends denying payment for this particular test 99.9 percent of the time. When the trial judge inquired of Nu-Best’s counsel whether he could use that admission “offensively in cross-examination of that doctor at trial” instead of compelling production of the records, Nu-Best’s counsel asserted that in order to impeach Dr. Dunn effectively, he must have the reports, and that only State Farm could produce them because Dr. Dunn does not keep copies of his own reports. The trial judge concluded that although State Farm could not be required to create records that do not exist, Nu-Best was entitled to production to the extent that State Farm could locate the requested documents with a good faith effort. On July 24, 2001, the trial court rendered the following order, which is the subject of the Petition here:
IT IS ADJUDGED that:
1. The court’s previous order of January 24, 2001 is STAYED pending the following: Defendant shall produce to Plaintiff every peer review and IME report, written recommendation or opinion to State Farm Mutual Automobile Insurance Company, directly or through any third party vendor, generated from Dr. Michael Dunn of and concerning only Nu-Best motion x-rays/videofluoroscopy for the last three years which it has in its possession; (b) Defendant shall have 20 days to produce the aforementioned documents; (c) if the Defendant cannot produce these documents it must submit an affidavit requesting further relief from this Order.
This Petition followed.
This Court must review the trial court’s decision to determine whether it departed from the “essential requirements of law.” Martin-Johnson, Inc., v. Savage, 509 So. 2d 1097, 1099 (Fla. 1987).
State Farm argues that the trial court departed from the essential requirements of law in ordering its compliance with this discovery request because the documents are not relevant to this case; because they are beyond the scope of discovery under Florida Rule of Civil Procedure 1.280(b)(4)(A)(iii); because they would reveal confidential information about patients who are not parties to this lawsuit; and because “production of these reports is also overly burdensome and harassing.” Although State Farm concedes that the financial relationship between it and an IME physician is discoverable, it emphasizes that the request at issue here has “absolutely nothing to do with any financial relationship between State Farm and any witness.” Finally, State Farm argues that the trial court “should have considered less burdensome, less intrusive methods before ordering the production of burdensome, sensitive information.”
It is well-settled that review by certiorari is not appropriate unless the trial court’s action constitutes a departure from the essential requirements of law that will cause irreparable harm for which there will be no adequate remedy on appeal. Martin-Johnson, 509 So. 2d at 1099. Although orders granting discovery “have traditionally been reviewed by certiorari,” id., certiorari “should not be used to circumvent the interlocutory appeal rule which authorizes appeal from only a few types of non-final orders.” Id. at 1098. Often, discovery orders are “subject to adequate redress by plenary appeal from a final judgment.” Id. at 1099. Therefore, when a petition for writ of certiorari is filed, “the reviewing court’s first duty is to assess whether the petitioner has made a prima facie showing that the order creates irreparable harm. If the petitioner does not make such a showing, the court lacks jurisdiction and will dismiss the petition.” Morgan, Colling & Gilbert, P.A. v. Pope, 798 So. 2d 1 (Fla. 2d DCA 2001).
Here, State Farm has not shown that it will be irreparably harmed by complying with this order.
In Allstate Ins. Co. v. Boecher, 733 So. 2d 993, 997 (Fla. 1999), the Florida Supreme Court acknowledged that in general, a balance must be found between “the need for information concerning potential bias and the right of the expert to be free from intrusive requests.” However, in cases like Boecher and the case at bar, “where the discovery sought is directed to a party about the extent of that party’s relationship with a particular expert, the balance of the interests shifts in favor of allowing the pretrial discovery.” Id.
State Farm attempts to distinguish Boecher by claiming that here, Nu-Best is not interested in the financial relationship between it and Dr. Dunn, and has not requested information showing the amount of money that State Farm has paid Dr. Dunn.
That distinction is unpersuasive. Nu-Best seeks information that could indicate that Dr. Dunn’s reports are biased in favor of State Farm. Although the request did not address the specific financial arrangements, jurors could find Dr. Dunn’s opinion biased if they are shown how many times that State Farm has employed him for the specific purpose of evaluating the medical necessity of Nu-Best’s motion x-ray, and that in all of his reports, he has never found one to be necessary. Since the purpose is to show possible bias, the requested information is not irrelevant.
Further, even if the requested reports were irrelevant, irrelevance — and expense — are not criteria sufficient to establish irreparable harm. Boecher, 733 So. 2d at 999. “Litigation of a non-issue will always be inconvenient and entail considerable expense of time and money for all parties in the case. The authorities are clear that this type of harm is not sufficient to permit certiorari review.” Martin-Johnson, 509 So. 2d at 1100.
State Farm also claims that the “overly burdensome and harassing” request goes beyond the scope of discovery as contemplated by Florida Rule of Civil Procedure 1.280. State Farm is correct that courts will not order parties to produce documents that do not exist — in other words, to create documents just to satisfy a discovery request. See Allstate Ins. Co. v. Pinder, 746 So.2d 1255 (Fla. 5th DCA 1999). However, the trial court here ordered reproduction only of those reports that State Farm already possesses. Although State Farm also correctly points out that the Florida Supreme Court did not address the issue of burdensome discovery orders in Boecher, it seems unlikely that this request is as oppressive as State Farm claims. In any event, the Supreme Court did state that it favors allowing discovery under these circumstances because “[a]ny limitation on this inquiry has the potential for thwarting the truth-seeking function of the trial process.” Boecher, 733 So. 2d at 997-998. Here, the transcript shows that the trial court, which attempted to narrow the request and even left the door open for State Farm to request relief after a “good faith effort,” made a reasonable attempt to balance the appropriate interests. Under Boecher, therefore, this is an acceptable discovery order. See also Southern Diagnostic Assocs v. Bencosme, 833 So. 2d 801 (Fla. 3d DCA 2002) (Florida Rule of Civil Procedure 1.280(b)(4)(A)(iii) “not intended to shield a party from inquiries regarding the extent of the party’s relationship with an expert witness”).1
Finally, State Farm argues that the requested production is unnecessary because Dr. Dunn will admit to a 99.9 percent denial rate on the stand. However, in his deposition, the doctor was unable to offer any specific numbers, such as how many of these reports he has done for State Farm. He also was unable to support the idea that he has ever (even one-tenth of one percent of the time) found this test to be medically necessary. Moreover, he denied keeping records of any of the reports he generated for State Farm. After learning of this testimony, the trial judge was not persuaded that cross-examination by itself would be an adequate substitute for obtaining production of the reports. Under these circumstances, this Court finds that the trial judge did not depart from the essential requirements of law by so concluding and by ordering compliance with the discovery request.
In sum, the trial court’s order does not exceed the scope of permissible discovery, and the trial judge did not depart from the essential requirements of law either by permitting it or by imposing an order so burdensome or oppressive as to cause irreparable harm as contemplated by the Florida Supreme Court in Martin-Johnson and Boecher.
Accordingly, it is hereby ORDERED and ADJUDGED that the Petition for Writ of Certiorari is DISMISSED.
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1In Bencosme, the Third District granted certiorari because the trial court’s discovery order had been overbroad. Unlike the trial court’s order here, the Bencosme discovery order allowed unlimited access and inspection of the adverse party’s computer system. The DCA stated that the trial court should have rendered a “narrowly tailored order” that “accomplishes the purposes of the discovery” while preserving confidentiality. Bencosme, 833 So. 2d at 803.
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