18 Fla. L. Weekly Supp. 687a

Online Reference: FLWSUPP 1808GAVI Insurance — Personal injury protection — Discovery — Insurer is ordered to provide better responses to interrogatories regarding relationship of insurer to non-party expert — By failing to timely respond to request for production, insurer waived objections that discovery is overly broad or burdensome

TAMPA BAY SPINE INSTITUTE, (a/a/o RAMON GAVIRIA) vs. NATIONAL SPECIALTY INSURANCE COMPANY. County Court, 13th Judicial Circuit in and for Hillsborough County. Case No. 08-CC-025579, Division J. May 12, 2011. Honorable Gaston J. Fernandez, Judge. Counsel: Joseph Ron Pliego II and Emilio Roland Stillo, Florida Trial Team Tampa, LLC, Tampa, for Plaintiff. Nadine Gabay, Miami, for Defendant.

ORDER ON PLAINTIFF’S MOTION TO ENFORCE COURTORDER OF JULY 19, 2010 AND TO COMPEL BETTER ANSWERS TO INTERROGATORIES 4 and 6

THIS CAUSE having come on for consideration on Plaintiff, TAMPA BAY SPINE INSTITUTE., Motion to Enforce Court Order of July 19, 2010 and the Court having reviewed same, and being otherwise duly advised, it is hereupon,

Background The Plaintiff propounded interrogatories 1 through 14 on or about May 26, 2010. An Order requiring the Defendant to respond within 30 days was entered on July 19, 2010. The Defendant did not comply and on or about September 1, 2010 the Plaintiff filed a Motion to Enforce Court Order of July 19, 2010 which was set for November 30, 2010. After the filing of the Motion to Enforce, the Defendant served Plaintiff with responses which the Plaintiff contends are incomplete or evasive. The Defendant has raised for its first affirmative defense reliance on an Independent Medical Examination performed by Dr. Robert Zerby DC to contest medical necessity. The Defendant also affirmatively alleged in its Answer and Affirmative Defenses that the medical expenses were not reasonable, related or medically necessary. Plaintiffs Interrogatory 4 seeks the following For any CPT code that the Defendant asserts is above the Usual and Customary amount, state the specific code and what the Defendant maintains the charge should have been”. Plaintiff’s Interrogatory 6 seeks the following information as it relates to Defendant’s IME doctor: “6a. The company’s name, address and telephone number who scheduled the IME, 6b. How much the IME cost the Defendant, 6c. How many times the Defendant has used this vendor company prior to this time within the last two (2) year period for scheduling IME appointments, 6d The total amount of payments the Defendant has paid this Vendor company prior to this time within the last two (2) year period for scheduling the IME appointments, 6f. How many IME appointments has this doctor performed at the request of the Defendant (through any of the Defendant’s vendor companies) within the last three (3) years and 6h. State each and every vendor company that the Defendant has paid within the last three (3) years to perform IME appointments or records reviews (peer reviews) on Defendant’s behalf. The Defendant objected to Interrogatory 4 based on proprietary, confidential material or material subject to work product. The Defendant objected to Interrogatory 6 based on the grounds overly broad, burdensome and creating undue hardship and expense. The Defendant also asserted the request calls for items which are irrelevant and immaterial to this material and not reasonably calculated to lead to the discovery of any admissible evidence and are solely designed to harass this Defendant in contravention to Rule 1.280, Florida Rules of Civil Procedure.

Conclusions of Law. The Florida Supreme Court in Allstate v. Boecher,¹ 733 So.2d (Fla. 1999) [24 Fla. L. Weekly S187a] held:

“We find no indication from either the language of rule 1.280(b)(4) or our opinion in Elkins that the rule was intended to shield a party from revealing the extent of its relationship with an expert witness. A jury is entitled to know the extent of the financial relationship connection between a party and a witness and the cumulative amount a party has paid an expert during their relationship. The information sought here would reveal how often the expert testified on Allstate’s behalf and how much money the expert made from its relationship with Allstate. The information sought in this case does not just lead to the discovery of admissible information. The information requested is directly relevant to a party’s efforts to demonstrate to the jury the witness’ bias. Any limitation on this inquiry has the potential for thwarting the truth-seeking function of the trial process.”

The Second District in Allstate v. Hodges, 855 So.2d 636, (Fla. 2nd DCA 2003), cited the Boecher decision of the Florida Supreme Court by explaining that “Any limitation on this type of inquiry has the potential of thwarting the truth-seeking function of the trial process. . .” Id. at 640. The Hodges decision, like Boecher, involved discovery seeking information regarding name of other cases where the expert “performed an analysis, or rendered an opinion for the past three years and the corresponding payments.” Id. at 640.

Further, National Specialty Insurance Company cannot shield itself from this inquiry through the use of a vendor. The Third District mandated an insurer respond to the subject discovery regarding the Defendant’s relationship with non-party experts. “United Auto cannot avoid the mandate of Boecher by employing [third party vendor] in an attempt to shield itself inquiries regarding its relationship with its experts”, Bencosme v. Southern Dignostic [Editor’s note: Southern Diagnostic v. Bencosme], 833 So.2d 801 (Fla. 3rd DCA 2002) [27 Fla. L. Weekly D2344d]. The Benscome court directed the trial court to craft an order directing production of discovery regarding compensation to United Auto’s experts. Further, the Defendant is required to produce 1099(s) reflecting compensation to the defendant’s Expert witnesses. See, Olivas v. Bravo, 795 So.2d 103, (Fla 3rd DCA 2001) [26 Fla. L. Weekly D1302a]. Production of information such as taxpayer identification numbers and 1099 forms are generally discoverable. Morgan, Colling & Gilbert v. Pope, 798 So.2d 1, at 4 (Fla 2nd DCA 2001) [26 Fla. L. Weekly D1841c].

Moreover, the Defendant effectively waived the objections cited by failing to timely respond to the request for production. American Funding, Limited v. Hill, 402 So.2d 1369 (1st DCA 1981). See also, Mott v. Pullum, 352 So.2d 107 (Fla. 2nd DCA 1977). The Defendant has not substantiated the objection in any manner. Parties objecting on grounds discovery was overly broad or burdensome must show that volume of documents, number of man hours required in their production, or some other quantitative factor makes it so. First City v. Hallmark of Hollywood, 545 So.2d 502, (Fla. 4th DCA 1989).

ORDERED AND ADJUDGED that said Motion be, and the same is hereby, GRANTED. The Defendant shall provide verified better responses within 30 days of the date of this Order.

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¹The Court notes the 2000 Amendment to the Fla.R.Civ.P. Rule 1.280 Allstate Insurance Co. v. Boecher, 733 So.2d 993, 999 (Fla.1999) [24 Fla. L. Weekly S187a], clarifies that subdivision (b)(4)(A)(iii) is not intended “to place a blanket bar on discovery from parties about information they have in their possession about an expert, including the party’s financial relationship with the expert.”