21 Fla. L. Weekly Supp. 132a
Online Reference: FLWSUPP 2102PARKInsurance — Personal injury protection — Discovery — Non-party expert witness — Error to require disclosure of financial information from non-party expert witness beyond limitations established by rule 1.280(b)(5)(A)(iii) and Elkins v. Syken, and without finding of “most unusual or compelling circumstances” — Error to require disclosure of non-party compulsory medical examination reports without prior notice to affected non-parties
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. EUNICE J. PARK, D.C., P.A., D/B/A CENTER OF ALTERNATIVE MEDICINE, A/A/O MARIA WADDLE, Respondent. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 11-026262CACE. L.T. Case No. 09-010646COCE(51). August 27, 2013. Petition for Writ of Certiorari from the County Court for the Seventeenth Judicial Circuit, Broward County, Martin R. Dishowitz, Judge. Counsel: Nancy W. Gregoire, Kirschbaum, Birnbaum, Lippmann & Gregoire, PLLC, Fort Lauderdale, for Petitioner. Marlene S. Reiss, Law Offices of Marlene S. Reiss, P.A., Miami, for Respondent.
FINAL ORDER GRANTINGPETITION FOR WRIT OF CERTIORARI
(PER CURIAM.) State Farm Mutual Automobile Insurance Company (“Petitioner”) seeks a writ of certiorari to quash the County Court’s Order on Defendant’s Objections to Notice of Taking Deposition Duces Tecum (the “Order”). This Court, having carefully considered the Petition for Writ of Certiorari, the Response to Petition for Writ of Certiorari, the Reply to Response to Petition for Writ of Certiorari, the record, the applicable law, and being duly advised in the premises, finds that the Petition for Writ of Certiorari must be granted as set forth below.
In the underlying matter, Eunice J. Park, D.C., P.A. (“Respondent”) filed a complaint for breach of contract for personal injury protection benefits. Petitioner filed its affirmative defenses asserting, inter alia, that, based on the opinion of Dr. Michael C. White (“Dr. White”), the medical bills were not reasonable, related, or necessary. Respondent served a Subpoena Duces Tecum upon Dr. White, Petitioner’s opinion witness and a nonparty to the underlying case. Petitioner raised the following objections to the Subpoeana Duces Tecum: irrelevant, immaterial, overly broad, unduly burdensome, harassing, and beyond the scope of Fla. R. Civ. P. 1.280.
On September 6, 2011, the County Court held a hearing on Petitioner’s objections. On September 28, 2011, Petitioner filed a Motion for Reconsideration. Petitioner asserted that, pursuant to Florida Rule of Civil Procedure 1.280, Dr. White could not be required to produce financial and business records absent a finding of the most unusual and compelling circumstances. Petitioner further argued that the disclosure of information from other independent medical examinations would result in an invasion of the privacy of nonparties. Notwithstanding, on September 28, 2011, the County Court overruled most of Petitioner’s objections.
The Order is a departure from the essential requirements of the law as it does not fully subscribe to the limitations on discovery from a nonparty expert witness as set forth in Florida law. See Fla. R. Civ. P. 1.280(b)(5)(A)(iii) (specifying the discovery that a party may obtain from a nonparty expert witness); Elkins v. Syken, 672 So. 2d 517 (Fla. 1996) [21 Fla. L. Weekly S159a] (adopting criteria to be followed in seeking financial information from opposing medical experts). Specifically, the Order goes beyond the parameters for such discovery, as established by the eight criteria set forth in Elkins. See Elkins, 672 So. 2d at 521. The Order also erroneously requires Dr. White to produce financial and business records without a finding of “the most unusual or compelling circumstances,” as required by Florida Rule of Civil Procedure 1.280(b)(5)(A)(iii). Fla. R. Civ. P. 1.280(b)(5)(A)(iii).
In addition, Graham v. Dacheikh, 991 So. 2d 932 (Fla. 2d DCA 2008) [33 Fla. L. Weekly D2015a], considered section 456.057(7), Florida Statutes and held that it prohibits the disclosure of nonparty compulsory medical examination reports without prior notice to all of the affected nonparties. See § 456.057(7), Fla. Stat.; Graham, 991 So. 2d at 934. Graham also rejected redaction as a substitute for statutory notice to nonparty patients. See Id. at 935; see also Coopersmith v. Perrine, 91 So. 3d 246, 247 (Fla. 4th DCA 2012) [37 Fla. L. Weekly D1513a] (quashing portion of trial court’s order that required production of information concerning nonparty compulsory medical examinations); USAA Cas. Ins. Co. v. Callery, 66 So. 3d 315 (Fla. 2d DCA 2011) [36 Fla. L. Weekly D1230a] (holding that the trial court could not order insurer to produce the records absent compliance with statute requiring notice to the affected patients). Moreover, section 456.057(7), Florida Statutes, not only prohibits production of nonparty compulsory medical examination reports without prior notice to the nonparty, it also prohibits discussion about the nonparty’s medical condition without prior notice to such nonparty. See § 456.057(7), Fla. Stat.; see also Crowley v. Lamming, 66 So. 3d 355, 360. (Fla. 2d DCA 2011) [36 Fla. L. Weekly D1567a] (holding that the trial court departed from the essential requirements of the law when it ordered expert witness to bring reports of nonparties to his deposition and testify to some of the information contained therein); Crandall v. Michaud, 603 So. 2d 637, 639-40 (Fla. 4th DCA 1992) (noting that the statute that requires prior notice to nonparty patients before production or discussion of their respective independent medical examination reports does not seem to make a distinction if their identities are concealed and holding that the contents of such reports were only slightly relevant to the issue of credibility and production of such reports would be unduly burdensome), disapproved on other grounds by Elkins, 672 So. 2d at 522. Accordingly, it is
ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is hereby GRANTED. The Order on Defendant’s Objections to Notice of Taking Deposition Duces Tecum is hereby QUASHED to the extent that it overrules Petitioner’s objections to the requests numbered 1, 2, 3, 4, 5, 6, 7, 10, 11, 12, 14, 15, 17 and 18. (STREITFELD, GATES, and PHILLIPS, JJ., concur).
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