16 Fla. L. Weekly Supp. 265a
Online Reference: FLWSUPP 163CARPE
Insurance — Personal injury protection — Discovery — Interrogatories — Insurer’s use of expert witness — Insurer is only required to answer interrogatories regarding number of times expert has testified for lawyers or law firm representing insurer, fee charged for examination of insured, and number of occasions in last three years that expert has examined other persons insured by insurer — Remaining question regarding identity of all cases within last three years in which expert has testified at trial or in deposition and approximation of expert’s involvement as expert witness must be directed to expert in deposition
WEST HOLLYWOOD PAIN & REHABILITATION, INC., (a/a/o Marie Carpentier), Plaintiff(s), vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant(s). County Court, 17th Judicial Circuit in and for Broward County. Case No. 08-08211 COCE 56. January 13, 2009. Linda R. Pratt, Judge. Counsel: Joseph R. Dawson. Brian E. Pabian.
ORDER ON MOTION FOR RECONSIDERATION
This cause is before the Court on Defendant’s Motion for Reconsideration of the Court’s Order Granting Plaintiff’s Motion to Compel Better Answers to Interrogatories and for Sanctions.
Plaintiff’s interrogatories (3)(c)-(g) seek the following information:
3 (c.) The expert’s general litigation experience, including the percentage work performed for plaintiffs and defendants and the number of times the expert has testified for the lawyer or law firm representing the defendant in this cause.
(d.) The identity of all other cases within the last three years, in which the expert has testified at trial or in deposition.
(e.) An approximation of the portion of the expert’s involvement as an expert witness, which may be based upon the number of hours, or percentage of earned income derived from serving as an expert witness.
(f.) If the expert performed an examination of the insured, please identify the fee charged for the examination regardless of whether defendant was charged directly by the examiner.
(g.) On how many occasions in the last three years has any medical expert who examined the insured performed such examinations for insurance companies generally, and how many times has the medical expert performed exams on persons insured by defendant?
Defendant contends that it is not the proper party to respond to these interrogatories. Plaintiff contends that all the information sought is discoverable and is properly addressed to Defendant by way of interrogatories.
All would agree that the cases of Elkins v. Syken, 672 So. 2d 517 (Fla. 1996) and Allstate v. Boecher, 733 So. 2d 993 (Fla. 1999) are controlling and must be the starting point for this Court’s analysis.
In Elkins v. Syken, supra, the Court established the limits of what information may be obtained from a party’s expert, where the expert has been subpoenaed for deposition. This decision became the basis for Florida Rule of Civil Procedure 1.280(b)(4)(iii).1
In Allstate v. Boecher the Court considered whether its decision in Elkins v. Syken and the provisions of Rule 1.280(b)(4)(A)(iii) prevented discovery requests directed to the party concerning the party’s use of the expert. The Court held such discovery was not prohibited and allowed the Plaintiff to submit interrogatories to the party Defendant seeking (1) the identity of cases in which the expert had performed analyses and rendered opinions for the Defendant in the last three years and; (2) the amount of fees the Defendant had paid the expert in the last three years.
Cases following the Boecher decision further establish that while a party does not have to create lists of documents showing payments to experts it uses, a party must still answer interrogatories concerning its relationship with and payments to experts it uses notwithstanding the fact that it could take weeks to gather the information. See Allstate Insurance Company v. Pinder, 746 So. 2d 1255 (Fla. 5th DCA 1999) and Allstate Insurance Company v. Hayes, 855 So. 2d 636 (Fla. 2nd DCA 2003).
Plaintiff in this case has submitted interrogatories to Defendant which combine the interrogatories permitted in Allstate v. Boecher, with the questions to the expert permitted in Elkins v. Syken, as well as seek additional information. Plaintiff contends that all of the information it seeks is properly obtained through interrogatories to the party and cites the recent decision of Parker v. James, case number 2D08-3024, Fla. 2DCA, Dec 31, 2008 [34 Fla. L. Weekly D32c], in support of this position. However, that case is not directly on point. There the Defendant had propounded expert witness interrogatories to Plaintiff’s treating physicians after taking their depositions. The trial court had ordered them to answer those questions which sought information described in Rule 1.280(b)(4)(A)(iii). The Second District Court of Appeal didn’t express an opinion as to whether the kind of discovery being sought was obtainable from the treating physicians, but merely held that there was no procedural rule permitting interrogatories to a non party. Thus we are still left with the question not addressed directly by any of the above cited cases of whether the information permitted by Elkins v. Syken and codified in the Rule must be obtained from the expert (not by interrogatories, we now know, but presumably by deposition) or may be obtained by interrogatories to the party.
Although subpart (iii) of Rule 1.280(b)(4)(A) does not specifically state from whom a party may obtain the discovery enumerated therein, when read in context and in light of Elkins v. Syken it is most logical to conclude that the information is to be obtained from the expert. This conclusion is supported by reading subsection (b)(4)(C) which requires the party seeking discovery to pay the expert a reasonable fee for time spent in responding to discovery under subdivision (b)(4)(A). This provision is obviously the reason why Plaintiff seeks to make the Defendant obtain the information from the expert and then answer interrogatories. While this approach makes sense, it isn’t provided for in the Rule. Thus the Court finds that as to the interrogatories Plaintiff has propounded to Defendant, Defendant must answer only the following:
1.) Question 3 (c.), seeking the number of times the expert has testified for the lawyer or the law firm representing the Defendant in this cause;
2.) Question 3 (f.), the fee charged for any examination of the insured, regardless of whether Defendant was charged directly; and
3.) Part of 3 (g.), seeking how many occasions in the last three years has any medical expert who examined the insured performed exams on persons insured by Defendant?
The remaining questions must be directed to the expert in deposition. Therefore, the Court’s order of October 16, 2008 is hereby modified to be consistent with this order, and the award of sanctions is reversed.
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1The Rule provides as follows: A party may obtain the following discovery regarding any person disclosed by interrogatories or otherwise as a person expected to be called as an expert witness at trial: (a.) the scope of employment on the pending case and the compensation for such service; (b.) the expert’s general litigation experience including the percentage of work performed for Plaintiffs and Defendants; (c.) the identity of other cases, within a reasonable time period in which the expert has testified by deposition or at trial; (d.) an approximation of the portion of the expert’s involvement as an expert witness, which may be based on the number of hours, percentage of hours, or percentage of earned income derived from serving as an expert witness; —
