27 Fla. L. Weekly Supp. 857a
Online Reference: FLWSUPP 2710UNITInsurance — Discovery — Expert witnesses — Order requiring insurer’s expert witness to produce proof of current employment referenced in his expert witness affidavit is quashed — Disclosure of non-party’s personal employment contracts cannot be remedied on appeal and exceeds scope of discovery permitted under rule 1.280
UNITED AUTOMOBILE INSURANCE COMPANY, Petitioner, v. MIAMI DADE COUNTY MRI, CORP., Respondent. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 2018-153-AP-01. L.T. Case No. 12-19976-SP-23. December 4, 2019. An Appeal from the County Court in and for Miami-Dade County, Martin Shapiro, Senior County Court Judge. Counsel: Michael J. Neimand, United Automobile Insurance Company, for Appellant. Marlene S. Reiss, Law Offices of Marlene S. Reiss, for Appellee.
(Before TRAWICK, WALSH and REBULL, JJ.)
OPINION
(TRAWICK, J.) Petitioner seeks to quash a non-final order requiring Petitioner’s expert witness, Dr. Edward A. Dauer, subject to a subpoena duces tecum for deposition, to produce proof of employment (including any and all contracts, employment agreements, or other proof) relating to his current employment referenced in his expert witness affidavit. For the reasons below, the petition must be granted and the trial court’s order quashed.
Respondent served a notice of taking deposition duces tecum requesting that Dr. Dauer produce several types of documentation to his deposition, including:
1. Copies of any and all 1099 forms or other evidence of total compensations received from the Insurer for the years 2015-2017 in consideration for performing IME’s and medical records reviews for the Insurer;
2. Copies of any and all 1099 forms or other evidence of the total compensation received from any and all vendors who procured his services from 2015-2017 in consideration for performing IME’s and medical records review for the Insurer; and
3. Any and all contracts, employment agreements or other proof of professional relationships referenced in paragraph 5 of the affidavit executed by Edward Dauer, MD, a copy of which is attached hereto.1
In response to the notice, Petitioner filed a motion for protective order asserting that the requests were overbroad, vague, ambiguous, unduly burdensome, and that the requests sought documents outside the scope of Florida Rules of Civil Procedure 1.280. After a hearing on the motion, the trial court sustained the objections as to the first two categories of documents listed above. As to the third category, the court overruled the objections. Petitioner timely filed the subject petition for certiorari asking this court to quash this discovery order.
A certiorari petition must pass a three-prong test before an appellate court can grant relief from an erroneous interlocutory order. Citizens Property Ins. Corp. v. San Perdido Ass’n, Inc., 104 So. 3d 344, 351 (Fla. 2012) [37 Fla. L. Weekly S691a]. A Petitioner must establish (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of trial, (3) that cannot be corrected on post judgment appeal. Id., citing Reeves v. Fleetwood Homes of Fla., Inc., 889 So. 2d 812, 822 (Fla. 2004) [29 Fla. L. Weekly S783a] (citation omitted). The appellate court must “focus upon the threshold jurisdictional question: whether there is a material injury that cannot be corrected on appeal, otherwise termed as irreparable harm.” Id. at 351.
Here, the aggrieved party is not a party to the litigation — he is an expert witness retained by the Petitioner. If disclosure of this witness’ personal employment contracts, agreements or other proof of employment is required, such disclosure cannot be remedied on appeal — this information, once learned, cannot be unlearned. Petitioner contends that the Provider’s request is beyond the scope of discovery pursuant to Florida Rule of Civil Procedure 1.280, which states in pertinent part:
Rule 1.280. General Provisions Governing Discovery
(b) Scope of Discovery. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:
(5) Trial Preparation: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (b)(1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:
(A)(i) By interrogatories a party may require any other party to identify each person whom the other party expects to call as an expert witness at trial and to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.
(ii) Any person disclosed by interrogatories or otherwise as a person expected to be called as an expert witness at trial may be deposed in accordance with rule 1.390 without motion or order of court.
(iii) A party may obtain the following discovery regarding any person disclosed by interrogatories or otherwise as a person expected to be called as an expert witness at trial:
1. The scope of employment in the pending case and the compensation for such service.
2. The expert’s general litigation experience, including the percentage of work performed for plaintiffs and defendants.
3. The identity of other cases, within a reasonable time period, in which the expert has testified by deposition or at trial.
4. An approximation of the portion of the expert’s involvement as an expert witness, which may be based on the number of hours, percentage of hours, or percentage of earned income derived from serving as an expert witness; however, the expert shall not be required to disclose his or her earnings as an expert witness or income derived from other services.
An expert may be required to produce financial and business records only under the most unusual or compelling circumstances and may not be compelled to compile or produce nonexistent documents. Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and other provisions pursuant to subdivision (b)(5)(C) of this rule concerning fees and expenses as the court may deem appropriate. (Emphasis added.)
In support of its argument that the subject discovery request exceeds that permitted by Rule 1.280, Petitioner cites Elkins v. Syken, 672 So. 2d 517 (Fla. 1996) [21 Fla. L. Weekly S159a]. In Elkins, the court adopted criteria to prevent the annoyance, embarrassment, oppression, undue burden, or expense imposed on medical experts during the discovery process. The court stated:
Within the limits of permitted discovery, medical experts are obligated to testify on a reasonable basis, truthfully, fully and freely. When it is disclosed or made apparent to the trial court that such a witness has falsified, misrepresented, or obfuscated the required data, the aggrieved party may move to exclude the witness from testifying or move to strike that witness’s testimony and or further, move for the imposition of costs and attorney’s fees in gathering the information necessary to expose the miscreant expert.
Id. at 546-47.
The third category of documents requested here does not fall within the permitted scope of disclosure for expert witnesses under Rule 1.280. Instead, these documents are of the type that may only be compelled under the most unusual or compelling of circumstances. Such a showing has not been made here. Moreover, these documents are not in any way related to the underlying litigation, and, if disclosed, would expose the personal details of the witness’ employment contracts unrelated to this case. Thus, the trial court’s order departed from the essential requirements of law. If allowed to stand this order would “create unnecessary burdens on our over-strained justice system,” Coopersmith v. Perrine, 91 So.3d 246, 248 (Fla. 4th DCA 2012) [37 Fla. L. Weekly D1513a] (May, C.J. specially concurring) by discouraging experts from testifying due to invasive and unnecessary discovery. Allowing such discovery would also create a “cat out of the bag” scenario as to Dr. Dauer’s employment records that could not be corrected on post judgement appeal. Under these circumstances, the trial court’s order cannot stand. See also Orthopedic Center of South Florida v. Sode, 274 So.3d 1127 (Fla. 4th DCA June 12, 2019) [44 Fla. L. Weekly D1480a]; Grabel v. Roura, 174 So.3d 606 (Fla. 4th DCA 2015) [40 Fla. L. Weekly D2101a]. Respondent is certainly free to depose Dr. Dauer about his employment. However, absent a showing that Dr. Dauer has in some way falsified, misrepresented or obfuscated requested information, Respondent’s request for all contracts, employment agreements or other proof of professional relationships exceeds the scope of Rule 1.280. Petitioner’s petition for certiorari is hereby GRANTED and the order of the trial court QUASHED. (WALSH, J. CONCURS.)
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(REBULL, J., concurring.) I concur in the result reached to quash the challenged discovery order. That order leaves intact a requirement that an expert bring with him to his deposition a category of documents which would include “financial and business records,” without a showing of “unusual or compelling circumstances.” I write separately to address the concern raised by the provider at the hearing below and on appeal, that any party be permitted to conduct non-financial discovery to test the veracity of factual assertions made by an adversary’s testifying expert.
In opposition to the provider’s motion for summary judgment, the insurer voluntarily submitted the affidavit of its testifying expert, Dr. Edward A. Dauer. In paragraph 5 of his affidavit, Dr. Dauer swears to the following facts:
Attached as composite Exhibit “A” to this affidavit and incorporated within, is a true and correct copy of my Curriculum Vitae, reflecting my education and professional experience. My current positions include: Medical Director of Radiology at Florida Medical Center Hospital in Lauderdale Lakes, a 459 bed acute care hospital; managing member of Broward P.E.T. Imaging Center, L.L.C.; member of the medical teaching staff at Mt. Sinai Medical Center, Miami Beach; and Research Associate Professor of Biomedical Engineering, Radiology, and Family Medicine at the University of Miami (Florida).
(emphasis added)
The provider wanted to take Dr. Dauer’s deposition and it served the insurer with a notice of taking deposition duces tecum and asked that he bring certain things with him to the deposition. The objectionable request — number 7 — asked that he bring: “Any and all contracts, employment agreements or other proof of professional relationships referenced in paragraph 5 of the affidavit executed by Edward Dauer, M.D., a copy of which is attached hereto.” (emphasis added).
In a motion for protective order, the insurer argued that this request was overbroad, vague, ambiguous, unduly burdensome and sought documents outside the scope of Florida Rule of Civil Procedure 1.280. At the hearing on the motion, the provider orally argued that it was “not interested in how much those companies are paying him, but I want to know what exactly his relationship is with these facilities . . . .” This was coupled with an offhand comment that Dr. Dauer could redact “if he wants to . . . .”
The challenged order simply “denied” the insurer’s objections to request number 7. Notably, the order did not narrow the request or otherwise limit the scope of what had to be brought to the deposition. Nor did the provider clearly and unequivocally offer to narrow the category of the information requested.
The plain language of the rule on discovery of testifying experts provides in pertinent part as follows:
(5) Trial Preparation: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (b)(1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:
(A)(i) By interrogatories a party may require any other party to identify each person whom the other party expects to call as an expert witness at trial and to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.
(ii) Any person disclosed by interrogatories or otherwise as a person expected to be called as an expert witness at trial may be deposed in accordance with rule 1.390 without motion or order of court.
(iii) A party may obtain the following discovery regarding any person disclosed by interrogatories or otherwise as a person expected to be called as an expert witness at trial:
1. The scope of employment in the pending case and the compensation for such service.
2. The expert’s general litigation experience, including the percentage of work performed for plaintiffs and defendants.
3. The identity of other cases, within a reasonable time period, in which the expert has testified by deposition or at trial.
4. An approximation of the portion of the expert’s involvement as an expert witness, which may be based on the number of hours, percentage of hours, or percentage of earned income derived from serving as an expert witness; however, the expert shall not be required to disclose his or her earnings as an expert witness or income derived from other services.
An expert may be required to produce financial and business records only under the most unusual or compelling circumstances and may not be compelled to compile or produce nonexistent documents. Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and other provisions pursuant to subdivision (b)(5)(C) of this rule concerning fees and expenses as the court may deem appropriate.
Fla. R. Civ. P. 1.280(b)(5) (emphasis added).
The rule says that discovery of experts may be “only” obtained as set forth therein. The rule specifies the permissible methods of discovery — interrogatories and a rule 1.390 expert deposition; and the substance of what a party can find out about a testifying expert. The text of the rule does not mention requests for production or duces tecum requests directed to requiring the expert to bring something with her to the deposition.
Finally, the rule says that an expert can’t be required to disclose her earnings as a witness, or income derived from other services; and that financial and business records may only be required to be produced2 under the “most” unusual or compelling circumstances. Lastly, the rule has an “escape valve,” which allows the court, upon motion, to “order further discovery by other means . . . .”
The case law is clear that in directing discovery to a party regarding their testifying expert, there’s a difference between interrogatories and requests for production. See Allstate Ins. Co. v. Hodges, 855 So. 2d 636, 642 (Fla. 2d DCA 2003) [28 Fla. L. Weekly D1910a] (approving of interrogatories directed to Allstate regarding the financial relationship between Allstate and three medical groups with doctors who Allstate had paid as expert witnesses). In Allstate Ins. Co. v. Pinder, 746 So. 2d 1255 (Fla. 5th DCA 1999) [25 Fla. L. Weekly D136a], the Fourth District Court of Appeal made it a point to note that the Florida Supreme Court in Allstate Ins. Co. v. Boecher, 733 So. 2d 993 (Fla. 1999) [24 Fla. L. Weekly S187a] approved of interrogatories — and not a request for production — asking a party to set forth in writing “the extent of the financial connection between the party and the witness, and the cumulative amount a party has paid an expert during their relationship.” Allstate Ins. Co. v. Boecher, 733 So. 2d 993, 997 (Fla. 1999) [24 Fla. L. Weekly S187a].
The challenged trial order requires the expert to bring with him to his deposition any and all contracts or employment agreements he has with Florida Medical Center, Broward P.E.T. Imaging Center, Mt. Sinai Medical Center, and the University of Miami. Without even seeing those documents, it’s reasonable to assume that they constitute “financial and business records.”3 It’s also clear from the record that the provider didn’t make a showing of the “most unusual or compelling circumstances,” which is defined to mean a showing that the expert has “falsified, misrepresented, or obfuscated the required data.” See Buck v. Chin, 19 So. 3d 1132, 1134 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2100a] (internal quotations and citations omitted); see also United Auto. Ins. Co. v. Friedman Chiropractic Ctr., P.A., 23 So. 3d 213, 214 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2507a] (granting second-tier cert. of a circuit appellate order which failed to quash a trial court order which ordered production of financial and business records without the required showing). The order must be quashed.
The provider argues that a party is entitled to request non-financial documents from an opposing party, “tending to prove or disprove”4 factual assertions made by a testifying expert regarding his background and credentials. The provider’s attempt to get at this issue in this case is set forth in their request that Dr. Dauer bring “other proof of professional relationships” testified to in his affidavit. Before delving into the analysis on this issue, I hasten to add that I am in no way commenting one way or the other on the truth or falsity of any testimony of Dr. Dauer. This is a classic “goose/gander” issue which has implications for plaintiffs and defendants in all types of cases, and their ability to challenge “plaintiffs’ experts” and “defendants’ experts.”
The problem of testifying experts lying about, or exaggerating, their credentials is nothing new. As far back as 1979, in a pre-trial hearing involving the murder case against Ted Bundy, a defense expert lied under oath, among other things, about having a doctoral degree in Clinical Psychology from Penn State University. See Kline v. State, 444 So. 2d 1102, 1103 (Fla. 1st DCA 1984)(affirming his conviction for perjury). This problem is well documented. See, e.g., Paul C. Gianelli, False Credentials, 16-FALL Crim. Just., at 40 (2001)(citing numerous cases nationwide, state and federal, where experts have lied about or misrepresented their credentials).5 Indeed, beyond expert witnesses, in an article about effective strategies for cross-examining them, the author notes:
A national survey of résumés submitted by 2.6 million job applicants, for example, revealed that 41 percent lied about their work experience, 23 percent fabricated licenses or credentials, and 41 percent lied about their education. Thomas A. Buckhoff, Preventing Fraud by Conducting Background Checks, CPA J., Nov. 2003. The Internet is replete with examples of successful professionals who claimed credentials they did not earn.
Thomas C. O’Brien, David D. O’Brien, Effective Strategies for Cross-Examining an Expert Witness, Litigation, Fall 2017, at 26, 27.
Aside from documenting the very real problem of experts misrepresenting their credentials these articles, and many others, give sound advice and guidance to litigants on ways to conduct “due diligence” on expert witnesses, outside of the court discovery process. But given the Florida Supreme Court’s statements in Boecher and many other cases about the “truth-seeking function and fairness” of the trial process, and taking a strong stand against “charade trials,” it is worth examining whether it is lawful and appropriate to allow some limited discovery directed to a party regarding the veracity of their expert’s credentials.
In allowing interrogatories to a party regarding the nature and extent of the financial relationship between the party and its testifying expert, the Court in Boecher started with the premise that “[o]ur rules of civil procedure broadly allow parties to obtain discovery of any matter, not privileged, that is relevant to the subject matter of the pending action, whether the discovery would be admissible at trial, or is merely reasonably calculated to lead to the discovery of admissible evidence.” Allstate Ins. Co. v. Boecher, 733 So. 2d 993, 995 (Fla. 1999) [24 Fla. L. Weekly S187a] (internal quotations and citations omitted).
As I’ve already noted above, the Florida Evidence Code declares that admissible and relevant evidence is evidence tending to prove or disprove a material fact. A testifying expert’s credentials are material facts. See Kline v. State, 444 So. 2d 1102, 1104-05 (Fla. 1st DCA 1984) (abrogated on other grounds). Regarding the admissibility of evidence which tends to contradict “or disprove” a material fact testified to by a witness, Professor Ehrhardt writes:
Section 90.608(5) recognizes that the credibility of a witness may be attacked by evidence tending to contradict a material fact stated in the testimony of the witness. During cross-examination, the examiner may point out the facts which are contrary to the witness’s testimony on direct examination. If the witness admits facts that are contrary to facts which were stated by the witness on direct examination, the credibility of the witness’s direct testimony will be in doubt.
Extrinsic evidence that is contrary to a fact to which a witness has testified is admissible to impeach the credibility of the witness. If a witness testifies that he and the victim were friendly before the death of the victim, another witness may be called to testify to facts showing that the relationship was not friendly.
Charles W. Ehrhardt, § 608.6 Impeachment — Contradiction, 1 Fla. Prac., Evidence § 608.6 (2019 ed.) (footnotes omitted). If an expert testifies, for example, that he is a Professor at Harvard University in Cambridge, Massachusetts, it seems pretty clear that evidence would be admissible tending to show that he is not — in fact — a Professor at that institution.6
For all of these reasons, in the right case, there is a place for limited discovery monitored by the trial judge, carefully crafted to uncover evidence tending to prove or disprove facts testified to by an expert regarding his credentials. This place may be only after a party has exhausted various methods for background investigation outside of the discovery process.7
In this case, the trial court’s order compels the expert to produce records in violation of the applicable rule and the cases interpreting it. I concur in the decision that it must be quashed.
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1Paragraph 5 of Dr. Dauer’s affidavit states as follows:
5. Attached as composite Exhibit “A” to this affidavit and incorporated within, is a true and correct copy of my Curriculum Vitae, reflecting my education and professional experience. My current positions include: Medical Director of Radiology at Florida Medical Center Hospital in Lauderdale Lakes, a 459 bed acute care hospital; managing member of Broward P.E.T. Imaging Center, L.L.C; member of the medical teaching staff at Mt. Sinai Medical Center, Miami Beach; and Research Associate Professor of Biomedical Engineering, radiology, and Family Medicine at the University of Miami (Florida).
2It’s interesting to note the rule’s use of the phrase “required to produce,” which appears to contemplate under at least certain circumstances, the production of documents and records by an expert.
3I note the parties haven’t briefed the issue as to whether the rule means something different and, if so, what that difference is as it relates to “financial” records versus “business” records. Financial records plainly means things such as IRS 1099 forms, tax returns, billing invoices, and bank statements. See Grabel v. Sterrett, 163 So. 3d 704 (Fla. 4th DCA 2015) [40 Fla. L. Weekly D1014b]; Allstate Ins. Co. v. Pinder, 746 So. 2d 1255 (Fla. 5th DCA 1999) [25 Fla. L. Weekly D136a]; Gramman v. Stachkunas, 750 So. 2d 688 (Fla. 5th DCA 1999) [25 Fla. L. Weekly D55a].
4“Relevant evidence is evidence tending to prove or disprove a material fact.” § 90.401, Fla. Stat. (2019). An expert relying in part on their employment and teaching positions as the basis for their opinions — and as the basis for requesting hourly rates in excess of $500 — has certainly made the fact of those positions “material” to their testimony.
5See also Jennifer A. Conta, How to Manage the Investigative Function in Evaluating Expert Witnesses, Orange County Law., May 2010, at 10. “The late Peter Ustinov once wrote: ‘If the world should blow itself up, the last audible voice would be that of an expert saying it can’t be done.’ Such cynicism about experts is understandable. But in our civil and criminal court systems, since the use of expert witnesses, particularly in complex cases, is a certainty, cynicism should give way to prudence. . . . What courts have struggled over is how to separate the qualified expert witness from the poser . . . .” Id.
Whether a witness is qualified as an expert is a preliminary question of fact that must be determined by the trial judge prior to the admission of the expert’s opinion, and is largely a matter for the discretion of the trial court. Counsel must elicit from the witness that part of the witness’s background which qualifies the witness as an expert.
***
A witness may only testify as an expert in the areas of his or her expertise. It is not enough that the witness is qualified in some general way. The witness must possess special knowledge about the discrete subject about which an opinion is expressed. When an expert goes beyond his or her expertise, the expert will not be allowed to testify in terms of expert opinion.
Charles W. Ehrhardt, § 702.1 Expert witnesses — Generally, 1 Fla. Prac., Evidence § 702.1 (2019 ed.)(footnotes omitted).
7Indeed, there’s some indication in the transcript of proceedings in the appendix that the provider’s trial counsel already has some impeachment evidence regarding Dr. Dauer’s credentials. “I can represent to Your Honor that I have this in other cases and it’s going to be very interesting because I can proffer without disclosing it — there are some issues with some of the representations that he’s made in that paragraph about what his relationships are. But I’m not going to give away my case right now. I’ve got to take one at a time.” Tr. at 15-16.
Counsel’s so-called “proffer without disclosing it,” is no proffer at all. It’s also improper, at least insofar as the fact that the Binger case itself requires the pretrial disclosure of evidence meant solely for impeachment of an expert witness. See Binger v. King Pest Control, 401 So. 2d 1310, 1313 (Fla. 1981) (rejecting gamesmanship, surprise, or superior trial tactics, as argument for non-disclosure of expert impeachment evidence). In other words, litigation is not like Texas hold ‘em poker, where a player doesn’t have to reveal their two “hole cards” until the final showdown, after all players have placed their bets.
