17 Fla. L. Weekly Supp. 381a
Online Reference: FLWSUPP 1705REYEInsurance — Personal injury protection — Discovery — Expert witness — Medical provider is not required to show unusual and compelling circumstances to obtain discovery of expert witness’s financial information from nonparty vendor that works as middleman scheduling and paying experts who perform peer reviews and independent medical examinations for insurer
EDUARDO J. GARRIDO, D.C., P.A., as assignee of Fernando R. Reyes, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant, County Court, 11th Judicial Circuit in and for Miami Dade County. Case No. 08-3118 CC 26 (2). January 22, 2010. Patricia Marino Pedraza, Judge. Counsel: Christian Carrazana, Panter, Panter & Sampedro, P.A., Miami, for Plaintiff. Christina Hudson, Office of the General Counsel, for Defendant.
ORDER ON DEFENDANT’S MOTION FOR RECONSIDERATION
THIS ACTION was heard before the Court on the 6 day of January 2010 on Defendant’s motion for reconsideration, and upon hearing the arguments of counsel and otherwise fully advised in the premises, the Court makes the following findings of fact and law:
FINDINGS OF LAW
1. This is a breach of contract action arising from Defendant’s alleged failure to pay PIP benefits to the Plaintiff, who is an assignee of the named insured, Fernando Reyes.
2. During the course of discovery, Plaintiff learned that Defendant retained Dr. Michael Mansdorf D.C., as an expert who will testify for Defendant on the issue of whether treatment is reasonable, related and necessary.
3. Plaintiff served a notice of intent to service a subpoena duces tecum for production of documents and things to the following non parties: Florida Medical Specialists (hereafter “FMS”); and Certified Medical Consultants (hereafter “CMC”).
4. Said non parties are vendors who schedule and coordinate independent medical examinations for PIP insurers and handle requests from such insurers for reports based on a review of treatment records (commonly referred to as “peer reviews”).
5. The non party vendors essentially work as a middle person or buffer that pays the insurer’s expert for preparing peer reviews and performing an independent medical examination for PIP insurers.
6. The subpoenas in this case requests that FMS and CMC produce payment records, including but not limited to 1099s, issued by said non parties to Defendant’s expert for preparing peer reviews and conducting independent medical examinations for insurers over the span of three years.
7. Defendant objected to said subpoenas on the grounds that the discovery sought is prohibited by Elkins v. Syken, 672 So.2d 517 (Fla. 1996) and Fla. R. Civ. P. 1.280(b)(4)(iii) unless Plaintiff can establish compelling and unusual circumstances.
8. A hearing on Defendant’s objection was heard in August 24, 2009 and at which time, the Court over ruled Defendant’s objection.
9. Defendant now moves for reconsideration and for reasons explained hereafter, Defendant’s motion for reconsideration is denied.
FINDINGS OF LAW
10. The issue before the Court is whether the restrictions under Fla. R. Civ. P. 1.280(b)(4)(A)(iii) applies where discovery of an expert’s financials is not directed to a party’s expert, but instead to a non party.
11. Defendant relies on the following cases for the proposition that the information sought from the non party vendors is prohibited unless Plaintiff can establish unusual and compelling circumstances: Elkins v. Syken, 672 So.2d 517 (Fla. 1996); Buck v. Chin, 19 So.3d 1132 (Fla. 3th DCA 2009); United Auto. Ins. Co., v. Advanced Health Services III Inc., a/a/o Angela Chavez, 16 Fla. L. Weekly Supp. 814a (Fla. I 1th Jud. Cir. App. 2009); and United Auto. Ins. Co., v. Advanced Health Services III Inc., a/a/o Janibelky Taverns, 16 Fla. L. Weekly. Supp. 817a (Fla. 11th Jud. Cir. App. 2009). Defendant also relies on Fla. R. Civ. P. 1.380(A)(4)(iii).
12. Defendant’s reliance on the aforementioned cases is misplaced because in each case, the discovery sought was directed to the expert or the trial court ordered the expert to personally disclose his financial information in response to the plaintiff’s discovery request. The Supreme Court’s holding in Elkins, supra, prohibits a party from seeking an expert’s financial information directly from the expert unless there is a showing of unusual and compelling circumstances. See Fla. R. Civ. P. 1.280(A)(4)(iii).
13. The controlling principle of law that controls this case is not Elkins, but instead Allstate Ins. Co., v. Boecher, 733 So.2d 993 (Fla. 1999). The Supreme Court in Boecher held that information regarding a party’s use of an expert, which includes the identity of cases in which the expert prepared a report or analysis for the party and monies paid to the expert by the party is discoverable from the party notwithstanding the limitations imposed by Fla. R. Civ. P. 1.280(b)(4)(A)(iii). The Boecher Court distinguished Elkins; and found that the policy considerations present in Elkins did not apply since the discovery at issue was directed to the party, not the expert. The Boecher Court also found that the restrictions imposed by Fla. R. Civ. P. 1.280(b)(4)(A)(iii) was not intended to shield a party from revealing the extent of its relationship with an expert witness; the rule is only intended to shield experts from personally disclosing their financial records unless there are unusual and compelling circumstances. Id, at 998-99.
14. Defendant, however, asserts Boecher is distinguishable because the discovery at issue here is not directed to Defendant, but instead to a non party. This position is untenable. In Springer v. West, 769 So.2d 1068 (Fla. 5th DCA 2000), the Fourth District rejected this distinction. Like here, the defendant in Springer argued that Boecher did not apply because unlike Boecher, the interrogatories at issue were not directed to defendant, but instead to a non party liability insurer.1 In rejecting this argument, the Springer Court found that to rule otherwise would render Boecher meaningless in all but a small class of cases. Id., at 1068.
15. The Court also rejects Defendant’s argument that Plaintiff must show unusual and compelling circumstances under Fla. R. Civ. P. 1.280(b)(4)(A)(iii) because the discovery at issue is not directed to Dr. Mansdorf, but instead to a non party. The discovery in this case concerns a non party’s relationship with Dr. Mansdorf; and as such, the information is not restricted by Fla. R. Civ. P. 1.280(b)(4)(A)(iii).2 See Boecher, 733 So.2d at 998-99; Springer, 769 So.2d at 1068.
ACCORDINGLY, it is hereby ORDERED & ADJUDGED that Defendant’s motion for reconsideration is DENIED based on the authority of Allstate Ins. Co., v. Boecher, 733 So.2d 993 (Fla. 1999) and Springer v. West, 769 So.2d 1068 (Fla. 5th DCA 2000).
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1The interrogatories in Springer were directed toward the defendant’s third party insurance carrier, who was a non party to the action; the discovery sought information regarding the nonparty’s relationship with the defense expert.
2The Court also notes that the non party vendors have not objected to the subpoenas.
