16 Fla. L. Weekly Supp. 1079b
Online Reference: FLWSUPP 1611SAND
Insurance — Personal injury protection — Discovery — Relationship of insurer and medical expert — Insurer is ordered to produce copies of 1099’s paid to compensate expert for performing independent medical examinations and peer reviews for three years prior to and three years subsequent to date of peer review in case and claim numbers of any IMEs or peer reviews performed by expert during that period where relationship of insurer to expert is discoverable, and record is devoid of evidence to support claim of undue burden — Insurer waived objections that discovery sought was overly broad and burdensome by failing to timely respond to request to production, and failed to substantiate objection in any manner
AFFILIATED HEALTHCARE CENTERS, INC., as Assignee of Yesser Sandoval, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 05 11989 SP 05 08. September 1, 2009. Wendell M. Graham, Judge. Counsel: Garrett T. Zediker and Emilio R. Stillo, Florida Trial Team LLC, Miami, for Plaintiff. Majid Vossoughi, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION TO ENFORCE COURT ORDER OF MAY 14, 2009
THIS CAUSE, having come before the Court for consideration on Plaintiff, Affiliated Healthcare Centers, Inc., a/a/o Yesser Sandoval, Motion to Enforce Court Order of May 14, 2009 and for sanctions.
Background. In this PIP case, on March 9, 2009, the Plaintiff propounded specific discovery requests on to the Defendant. The Plaintiff sought copies of any 1099s for the years 2002-2008 issued by the Defendant to any vendors who performed services in the instant action, 1099s for the years 2002-2008 issued by the Defendant to any doctors who performed an IME or Peer Review in the instant action and a list of total claims that any doctor who performed an IME and/or Peer Review in the instant case performed similar services for the Defendant from 2002-2008. The discovery is sought directly from the Defendant and is limited to discovering the extent of the Defendant’s relationship with its experts so that the jury can be informed of the bias of Defendant’s Expert Witness.
The Defendant failed to timely respond or object to such request. The Plaintiff was forced to file a motion to compel. The Court entered an Order on May 14, 2009 compelling responses to Plaintiff’s discovery requests. The Defendant untimely objected to the court ordered discovery citing Miller v. Harris, 2 So.3d 1070 (Fla. 2nd DCA 2009), and Elkins v. Syken, 672 So.2d 517 (Fla. 1996). Both Elkins and Miller are inapplicable as both dealt with discovery directed at an Expert not “a party”.1
The Defendant further objected to providing the list of claims where the defense experts in the instant case performed IME and/or Peer Review(s) on other claims for the Defendant by making unsupported objections regarding undue burden and citing Pinder v. Allstate, 746 So.2d 1255, (Fla. 5th DCA 1999). The record isdevoid of any affidavit or other support to substantiate the aforesaid objection. The defendant has repeatedly demonstrated during the course of discovery that such information is readily available to the Defendant. Counsel for the Defendant has also alleged the Defendant, a party, was not required to provide this information. Defense counsel acknowledged access to this information in court August 5, 2009.
Conclusions of Law. The Florida Supreme Court, in Boecher v Allstate, 733 So.2d 993 (Fla. 1999) explained the principles behind mandating discovery regarding the relationship of a party, specifically an insurance carrier, to a particular expert.
The subject request in the instant matter seeks only discovery regarding the relationship, i.e., the identity of other claims where the expert has performed IME(s) and peer review(s) performed for the Defendant and compensation for same. The scope of the discovery seeks information within three years prior to and subsequent to the date of services (s) performed by the expert in this matter. The subject discovery fall squarely within the ruling laid out by the Boecher court and the progeny of law that followed. The discovery sought would demonstrate bias on the part of Defendant’s expert witness. In Boecher, the Court held that discovering the extent of the relationship between an expert and a party would be “indisputably relevant and meaningful”. Id. at998. The Fifth District further elaborated that regardless of an insurer’s status as a “party” or “nonparty”, the relationship between an insurer and expert is discoverable, as here the compensation and work on other claims by the defense expert are discoverable from the Defendant, an insurance carrier. Springer v. West, 769 So.2d 1068 (Fla. 5th DCA 2000).
The Second District in Hodges v. Allstate, 855 So.2d 636, (Fla. 2nd DCA 2003), cited the Boecher decision of the Florida Supreme Court by explaining that“ Any limitation on this type of inquiry has the potential of thwarting the truth-seeking function of the trial process. . .” Id. at 640. The Hodges decision, like Boecher, involved discovery seeking information regarding name of other cases where the expert “performed an analysis, or rendered an opinion for the past three years and the corresponding payments.” id. at640. The Defendant has access to the subject information and merely required to provide documentation. Further, requiring the documentation of information already in possession of the Defendant “does not create undue burden” id. at 642.
The Third District mandates the defendant respond to the subject discovery regarding the Defendant’s relationship with non-party experts.“United Auto cannot avoid the mandate of Boecher by employing [third party vendor] in an attempt to shield itself from inquiries regarding its relationship with its experts”, Bencosme v. Southern Diagnostic, 833 So.2d 801 (Fla. 3rd DCA 2002). The Benscome court directed the trial court to craft an order directing production of discovery regarding compensation to United Auto’s experts. Further, the Defendant is required to produce 1099(s) reflecting compensation to the defendant’s Expert witnesses. See, Olivas v. Bravo, 795 So.2d 103, (Fla 3rd DCA 2001). Production of information such as taxpayer identification number and 1099 forms are generally discoverable. Morgan, Coiling & Gilbert v. Pope, 798 So.2d 1, at 4 (Fla 2nd DCA 2001).
Moreover, the Defendant effectively waived the objections cited by failing to timely respond to the request for production. American Funding, Limited v. Hill, 402 So.2d 1369 (1st DCA 1981). See also, Mott v. Pullum, 352 So.2d 107 (Fla. 2nd DCA 1977). The Defendant hasnot substantiated the objection in any manner. Parties objecting on grounds discovery was overly broad or burdensome must show that volume of documents, number of man hours required in their production, or some other quantitative factor makes it so. First City v. Hallmark of Hollywood, 545 So.2d 502, (Fla. 4th DCA 1989).
ORDERED AND ADJUDGED that said Motion is hereby GRANTED.
The Defendant shall produce copies of the 1099(s) paid by Defendant to compensate Dr. Elena Russot, D.C., for performing IME(s) and /or peer review(s) for the Defendant for three years prior to the date of the July 25, 2008 Peer Review in this matter, and three years subsequent to that date. The Defendant shall produce the claim numbers of any IME(s) or peer review(s) performed by Dr. Elena Russo, D.C., over the same period of time.
The Defendant shall provide the foregoing within (30) days. The Court reserves as to attorney’s fees/sanctions for the necessity of this motion until the conclusion of the case.
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1The Court notes the 2000 Amendment to the Fla.R.Civ.P. Rule 1.280 Allstate Insurance Co. v. Boecher, 733 So.2d 993, 999 (Fla.1999), clarifies that subdivision (b)(4)(A)(iii) is not intended “to place a blanket bar on discovery from parties about information they have in their possession about an expert, including the party’s financial relationship with the expert.”
