17 Fla. L. Weekly Supp. 476a
Online Reference: FLWSUPP 1706ANGUInsurance — Personal injury protection — Discovery — Interrogatories — Relationship to expert witness — Insurer’s objections to interrogatories requesting information from insurer regarding expert’s experience as expert witness, including percentage of work hours and income received from work as expert, frequency of testimony and extent of expert’s relationship to insurer, are denied
MARTINEZ CHIROPRACTIC CENTER, INC., (Nicole Angulo, Patient), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 07-010700 COCE (50). January 13, 2010. Peter B. Skolnik, Judge. Counsel: Andrew J. Weinstein, Weinstein Law Firm, Coral Springs, for Plaintiff. Fesner Petion, for Defendant.
ORDER ON DEFENDANT’S MOTION FOR PROTECTIVE ORDER and DEFENDANT’S OBJECTIONS TO PLAINTIFF’S PRE-TRIAL INTERROGATORIES NUMBER’S 1, 3f, 10, 10c, 11,11c, 12, 12c, 14, 15 AND 16
THIS CAUSE came before the Court on December 8, 2009, for hearing on Defendant’s Motion for Protective Order from Plaintiff’s Pre-trial Interrogatories Numbers 1, 3f, 10, 10c, 11, 11c, 12, 12c, 14, 15 and 16, the Court having reviewed the Motion 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 January 6, 2002.
2. On or about August 26, 2009, Plaintiff propounded Pre-Trial Interrogatories.
3. On or about October 13, 2009, Defendant provided its Objections to Plaintiff’s Pre-Trial Interrogatories and filed its Motion for Protective Order from Plaintiff’s Pre-Trial Interrogatories Numbers 1, 3f, 10, 10c, 11, 11c, 12, 12c, 14, 15, and 16.
4. Said Interrogatories request information regarding Defense expert, Dr. Elena Russo’s, experience as an expert witness, including but not limited to percentage of work hours and income received as an expert, frequency of expert’s testimony, and the extent of the Defendant’s relationship with its expert.
5. In its Motion for Protective Order, Defendant, UNITED AUTOMOBILE INSURANCE COMPANY (hereinafter “UNITED”), contends that said Interrogatories request information that can only be attested to by its expert witness. Defendant alleges that Defendant’s agent, adjuster, and/or corporate representative cannot attest to the information.
Conclusions of Law:
6. 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).
7. Information regarding an expert witness’ relationship with a party is relevant to show a witness’s bias. Id. at 997.
8. “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).
9. 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.
10. Similar to Boecher, the Plaintiff sought information regarding the extent of a financial relationship between the Defendant and its expert witness, Dr. Elena Russo. 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 Pre-Trial 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.
11. 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).
12. 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).
13. Defendant attempts to shield itself from information about its relationship with its expert by alleging that Defendant has no knowledge of responses 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. Thus, 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 are overruled and Defendant’s Motion for Protective Order from Plaintiff’s Pre-Trial Interrogatories Numbers 1, 3f, 10, 10c, 11, 11c, 12, 12c, 14, 15, and 16 is hereby DENIED.
2. Defendant must provide Plaintiff with its responses to Plaintiff’s Pre-Trial Interrogatories Numbers 1, 3f, 10, 10c, 11, 11c, 12, 12c, 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.
