17 Fla. L. Weekly Supp. 1177a
Online Reference: FLWSUPP 1712JRODInsurance — Personal injury protection — Discovery — Record of expert witness — Error to order insurer’s expert witness to produce redacted lists of HCFAs and evidence of income derived from examinations where record does not establish that ordered lists exist, and trial court did not announce any unusual or compelling circumstances to require expert to compile or produce nonexistent records or to produce financial and business records
UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Appellant, vs. ADVANCE HEALTH SERVICES III, INC. A/A/O Josefina Rodriguez, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 09-149-AP. L.C. Case No. 07-02819 CC 26. July 29, 2010. An Appeal from a decision rendered by the Miami-Dade County Court, Robin Faber, Judge. Counsel: Lara J. Edelstein, Office of the General Counsel, United Automobile Insurance Company, for Appellant. Martin I. Berger and Adam C. Loeb, Samole & Berger, P.A., for Appellee.
(Before CARDONNE ELY, HUBBART and TUNIS, JJ.)
CONFESSION OF ERROR
(TUNIS, Judge.) Appellant United Automobile Insurance Company (“United Auto”) filed a Petition for a Writ of Certiorari seeking to quash a written order entered against it by the trial court. The trial court overruled United Auto’s objection to a third party subpoena duce tecum directed at United Auto’s medical expert, Dr. Bradley I. Simon, D.C.
At the trial level Dr. Simon was ordered to produce “redacted” “lists” of “all HCFA’s to be produced for 2008”, and “evidence of income derived from the examinations at issue.” In response to the written order, United Auto filed this Petition for Writ of Certiorari seeking to quash the trial court’s order. Advance Health Services III, Inc. a/a/o Josefina Rodriguez (“Advance Health”) filed a Motion for Leave to File a Confession of Error and Notice of Confession of Error which cited Buck v. Chin, 19 So. 3d 1132 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2100a]. The motion was granted by the January 7, 2010 Eleventh Judicial Circuit Court Appellate Panel. The matter is now before this Court.
This Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(c)(2). That rule states in pertinent part: “The certiorari jurisdiction of circuit courts may be sought to review non-final orders of lower tribunals other than as prescribed by rule 9.130.” Fla. R. App. P. Rule 9.030.
The standard of review is whether the trial court’s discovery order “departs from the essential requirements of law” causing “a material injury to [the Petitioner] throughout the remainder of the proceedings, effectively leaving no adequate remedy on appeal.” Cooper Tire and Rubber Co. v. Rodriguez, 2 So. 3d 1027, 1030 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D158a] (quoting Allstate Ins. Co. v. Langston, 655 So. 2d 91, 94-95 (Fla. 1995)) [20 Fla. L. Weekly S217a].
Under Florida Rule of Civil Procedure 1.280(4)(A)(iii) an expert cannot be compelled to “compile or produce nonexistent documents”, or produce financial and business records absent “unusual or compelling circumstances.” The unusual or compelling circumstances which the rule requires exist ordinarily “when it is disclosed or made apparent to the trial court that [the expert] witness has falsified, misrepresented, or obfuscated the required data.” Buck 19 So. 3d at 1134.
The record below does not establish that the ordered “lists” existed. Additionally, the trial court did not announce any unusual or compelling circumstances which required the production of financial or business records. By requiring Dr. Simons to produce documents which go beyond the parameters established in the Florida Rules of Civil Procedure, the trial court erred. Therefore, the Confession of Error is well taken.
FOR THESE REASONS, the order overruling the Appellant’s objection to Appellee’s notice of its intention to serve a third party subpoena duce tecum is REVERSED and this cause is REMANDED to the trial court for further proceedings consistent with this opinion. (CARDONNE ELY and HUBBART, J.J. concur.)
