17 Fla. L. Weekly Supp. 1127a
Online Reference: FLWSUPP 1711OROZInsurance — Personal injury protection — Discovery — Expert witness — Insurer’s objections to interrogatories regarding ongoing financial relationship with its expert and expert’s retention by insurer and third parties in other litigation are overruled — For interrogatories concerning matters of which insurer claims it has no knowledge, insurer must obtain information from its attorney, agent or employee
CHAMPION CHIROPRACTIC & REHAB, INC., (Fabio Orozco-Murillo, Patient), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE 07-010815 (55). June 21, 2010. Sharon L. Zeller, Judge. Counsel: Andrew J. Weinstein, Weinstein & Associates, P.A., Coral Springs, for Plaintiff. Rashad H. El-Amin, for Defendant.
ORDER ON DEFENDANT’S OBJECTIONS TO PLAINTIFF’S PRE-TRIAL INTERROGATORIES NUMBER’S 3a, 3c, 3d, 3e,7, 8, 9, 10, 11, 12, 13, 14, 15 AND 16
THIS CAUSE came before the Court on April 12, 2010, for hearing on Defendant’s Objections to Plaintiff’s Pretrial Interrogatory Numbers 3a, 3c, 3d, and 3e, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16, the Court having reviewed the Defendant’s objections and entire Court file; heard argument; reviewed relevant legal authorities; and been sufficiently advised on the premises, the Court finds as follows:
Background
1. This case arises out of a claim for Personal Injury Protection benefits resulting from an automobile accident occurring on or about December 7, 2005.
2. On or about August 26, 2009, Plaintiff propounded Pretrial Interrogatories upon the Defendant, United Automobile Insurance Company.
3. On or about November 23, 2009, Defendant untimely provided its Answers and Objections to Plaintiff’s Pretrial Interrogatories.
4. Plaintiff’s Pretrial Interrogatories numbers 3a, 3c, 3d, and 3e sought to obtain the following information:
Question: For each person whom you or your attorneys expect to call to testify as a medical expert at the trial of this matter, please state the following:
a. His or her educational background, giving the names of the educational institutions attended, the date of attendance, the degrees earned with the dates thereof.
c. His or her experience within the field, giving the dates, names, addresses of employers, if any; dates, names and addresses or institutions associated with, if any; and any other experience, indicating dates and places.
d. Names of all professional associations of which he or she is a member, and associations with whom he or she is related, stating his or her status with each and the inclusive dates of such status.
e. The title, name of publication, name of publisher, and date of publication of published articles, books, etc., authored by each such person.
5. In addition, Plaintiff sought to determine Defendant’s expert witness, Marvin Merrit’s general litigation experience as well as the financial relationship between the Defendant and the Defendant’s expert as follows:
(7-9) State the total amount of money that UNITED AUTOMOBILE INSURANCE COMPANY paid to Dr. Marvin Merrit, D.C. or any third party on behalf of Dr. Marvin Merrit, D.C. from 2006-2008 for services relating to the performance of compulsive medical examinations, record reviews, report preparation, litigation preparation, attorney conferences, diagnostic testing, deposition testimony and trial testimony. Please separate these payments by category.
(10-12) Please provide information sufficient to identify the name of every case, (Court case number, claim number and claimant name) wherein Dr. Marvin Merrit, D.C. was retained in 2006, 2007 and 2008 by: A. United Automobile Insurance Company; B. Office of the General Counsel; C. PROFESSIONAL EVALUATION GROUP, to perform compulsive medical examinations, record reviews, report preparation, litigation preparation, attorney conferences, diagnostic testing, deposition testimony and trial testimony.
(13) Please state the total amount of compensation paid to Dr. Marvin Merrit, D.C. or to any third party on behalf of Dr. Marvin Merrit, D.C. for services rendered in this case.
(14) As to doctor Marvin Merrit, D.C., please state the percentage of expert litigation work that has been done on behalf of Plaintiffs and the percentage of expert litigation work that has been done on behalf of Defendants for the past three (3) years.
(15) As to doctor Marvin Merrit, D.C., please state the percentage of income that the expert has earned from serving as an expert witness. This shall include, but shall not be limited to, income earned from compulsive medical examinations conducted, record reviews, report preparation, litigation preparation, attorney conferences, diagnostic testing, deposition testimony, and trial testimony.
6. Defendant objected to the above referenced interrogatories stating:
“Objection. Defendant is not in possession of requested information. See United Auto v. MRI Associates a/a/o Parilla, Case No. 07-5796 CACE (12) (Fla. 17th Cir. Ct. June 25, 2007). Defendant, by and through its adjuster, cannot attest, under penalty of perjury, to having personal knowledge of the requested information which is only in the possession of the expert witness. Without waiving such objection, the Defendant provides here only that information to which the adjuster can attest.
7. 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.
8. In the instant case, Plaintiff is seeking information regarding the financial relationship between UNITED and its expert directly from the Defendant. The specific information Plaintiff is seeking in this case pertains to the expert’s ongoing relationship with United.
9. In Allstate Insurance Company v. Boecher, the Florida Supreme Court held that Florida Rule of Civil Procedure 1.280(b)(4)(A)(iii), which establishes the scope of expert discovery, was not intended to shield a party from inquiries regarding the extent of a party’s relationship with its expert witness. Allstate Ins. Co. v. Boecher, 733 So.2d 993, 999 (Fla. 1999). Information regarding an expert witness’ relationship with a party is relevant to show a witness’s bias. Id. at 997.
10. “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.” Springer v. West, 769 So.2d 1068, 1069 (Fla. 5th DCA 2000).
11. Court held a jury is entitled to know the extent of the financial connection between the party and the witness, and the cumulative amount a party paid an expert during their relationship. The Court’s rationale behind allowing this type of discovery is that a jury is entitled to know the extent of the financial relationship between a party and its expert and a party is entitled to argue to the jury that a witness is biased based on a financial incentive. Boecher, 733 So.2d at 997-8. The Court further explained:
To limit this discovery would potentially leave the jury with a false impression concerning the extent of the relationship between the witness and the party by allowing a party to present a witness as an independent witness when, in fact, there has been an extensive financial relationship between the party and the expert. This limitation thus has the potential for undermining the truth-seeking function and fairness of trial. Id.
12. Similar to Boecher, the Plaintiff sought information regarding the extent of a financial relationship between the Defendant and its expert witness, Dr. Marvin Merrit. Additionally, the information would disclose the amount of money the expert was paid as a result with the relationship with the Defendant as well as the extent of the Defendant’s relationship with the expert in similar types of matters over the past three (3) years. The information requested in said Pretrial Interrogatories is directly relevant to show any potential bias of the witness. Limiting the discovery of such information “ ‘would affect the truth-seeking function of a jury, for the failure to present any ultimately admissible information would diminish the jury’s right to assess the potential bias of the witness.’ ” Hodges, 855 So.2d at 641.
13. Furthermore, regardless of an insurer’s status as a “party” or “nonparty,” information about the relationship between a non-party liability insurer and the insurer’s experts is discoverable pursuant to Boecher. See Springer v. West, 769 So.2d 1068 (Fla. 5th DCA 2000). Additionally, a party cannot refuse to answer discovery on the grounds that the party has no personal knowledge of the facts, but must obtain the information from his attorney, agent, or employee. Surf Drugs, Inc. v. Vermette, 236 So.2d 108, 113 (Fla. 1970).
14. In Southern Diagnostic Associates v. Bencosme, the Third District Court of Appeal found that United Automobile Insurance, a non-party liability insurer, “cannot avoid the mandate of Boecher by employing Southern Diagnostic in an attempt to shield itself from inquiries about its relationship with its experts.” Southern Diagnostic Associates v. Bencosme, 833 So.2d 801, 802 (Fla. 3d DCA 2002).
15. Defendant attempts to shield itself from information about its relationship with its expert by alleging that Defendant has no personal knowledge of the information related to non-party companies or individuals. UNITED cannot employ a non-party in attempt to shield itself from inquiries concerning its relationship with its expert by. See Bencosme, 833 So.2d at 802.
Accordingly, this Court finds that the information sought in this case does not just lead to the discovery of admissible information, but is also directly relevant to a party’s efforts to demonstrate to the jury the witness’s bias.
This Court also finds that Defendant’s objections to said Interrogatories alleging that Defendant has no knowledge of the information and the information requested can only be attested to by the expert witness is legally insufficient. Defendant must obtain the information requested from its attorney, agent or employee. See Surf Drugs, Inc., 236 So.2d at 113.
It is therefore,
ORDERED AND ADJUDGED as follows:
1. Defendant’s Objections to Plaintiff’s Pre-Trial Interrogatories Numbers 3a, 3c, 3d, and 3e, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16 are hereby OVERRULED.
2. Defendant must provide Plaintiff with its responses to Plaintiff’s Pre-Trial Interrogatories Numbers 3a, 3c, 3d, and 3e, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16 within 20 days of the date of this Order.
3. This Court reserves jurisdiction to award attorney’s fees and costs pursuant to Florida Rule of Civil Procedure 1.380.
