6 Fla. L. Weekly Supp. 6a
Insurance — Personal injury protection — Discovery — Depositions — Appeals — Certiorari review is proper where injury caused by discovery order on review would be irreparable on plenary review — Insured may depose representative of medical billing review agency and obtain through discovery copies of non-privileged documents in agency’s possession based upon insurer’s indication that it may call representative of agency as lay or rebuttal witness to testify regarding agency’s transmission of documents and based upon fact that agency was entity responsible for selecting, retaining, and compensating the two doctors who reviewed insured’s records and/or examined insured, and whose recommendations ultimately resulted in insurer’s denial of insured’s PIP benefits — Insurer may not shield agency from discovery regarding lay witness matters simply because it no longer intends to call agency to testify at trial as expert witness — Trial court departed from essential requirements of law by not considering agency in its capacity as lay witness, by precluding insured from deposing agency representative regarding lay witness matters, and by precluding insured from obtaining through discovery non-privileged documents from agency
KRISTINA DEMOND, Petitioner, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Respondent. 9th Judicial Circuit, in and for Orange County. Case No. CI98-1265. Writ No. 98-9. L.T. Case No. CO95-11048. September 8, 1998. Petition for Writ of Certiorari. Counsel: Terry A. Slusher, Seifert, Miller & Slusher, P.A., on behalf of Petitioner. Patrick C. Howell, Drage, de Beaubien, Knight, Simmons, Romano & Neal, on behalf of Respondent.
(Before KOMANSKI, RUSSELL, and WATTLES, JJ.)
FINAL ORDER GRANTING PETITION FOR WRIT OF CERTIORARI
(PER CURIAM.) Kristina Demond petitions this Court for a writ of certiorari quashing the trial court’s order granting State Farm’s renewed motion for protective order and canceling the deposition of the corporate representative of Document Related Services, Inc. We dispense with oral argument. See Fla. R. App. P. 9.320. We grant the Petition for Writ of Certiorari.
The record before this Court establishes the following pertinent facts. On March 21, 1995, Kristina Demond was involved in a motor vehicle accident in which she sustained personal injuries. At the time of the accident, Demond maintained a personal injury protection (PIP) policy with State Farm. As a result of her injuries, Demond sought medical treatment. Bills for the medical treatment were subsequently submitted to State Farm for payment pursuant to the terms of Demond’s PIP policy. After receiving the bills and supporting documentation, State Farm transmitted them to Documentation Related Services, Inc. (DRS), a medical billing review agency.
DRS retained a licensed chiropractic physician by the name of David J. Bennett, D.C., to audit and “re-review” the documents that it had received from State Farm; Dr. Bennett’s audits and “re-reviews” were thereafter forwarded to State Farm. Additionally, DRS retained Roberto M. Arias, D.C., to conduct a medical examination of Demond. Following Dr. Arias’s examination, Debra Meharg, Claims Superintendent for State Farm, sent a letter dated August 31, 1995 to Demond advising her that based upon Dr. Arias’s examination, State Farm was discontinuing her chiropractic PIP benefits as of September 6, 1995.
Demond subsequently filed suit against State Farm. Thereafter, counsel for Demond took the depositions of Meharg and Denise Freeman, the State Farm claims adjuster handling Demond’s claim. At her deposition, Meharg testified in relevant part that DRS was responsible for paying the physicians who performed the examinations and reviewing services in this matter. Additionally, Meharg testified that she had no idea how many times DRS had been retained by State Farm in the preceding twelve months to perform document reviews or arrange medical examinations, and that she had no knowledge of the manner by which DRS selected the physicians it used to do the reviews. Further, Meharg stated that she had no idea how many times in the preceding twelve months State Farm had retained a reviewing physician to conduct document reviews.
Denise Freeman testified in relevant part at her deposition that if DRS recommended that a bill not be paid, State Farm did not pay the bill. Additionally, Freeman testified that she did not know how many times DRS had been retained by State Farm to perform document reviews. Furthermore, Freeman testified that State Farm did not send records over to Dr. Arias before he performed his examination of Demond, and that she did not know whether Dr. Arias had the “full records” on Demond.
On April 11, 1996, Denise Freeman, as corporate representative of State Farm, served State Farm’s Answers to Interrogatories. In response to the interrogatory requesting information regarding persons other than medical witnesses who have knowledge concerning issues raised by the pleadings, Freeman named DRS as the only non-medical witness with such knowledge. In response to the interrogatory requesting information regarding medical expert witnesses, Freeman listed Dr. Arias, the physician selected, retained, and paid by DRS to examine Demond. Further, in response to the portion of the interrogatory requesting information regarding the reasonableness, necessity, and relatedness of medical bills to the accident, Freeman listed DRS as the entity which conducted a review of the medical bills for the purpose of determining whether they were reasonable, necessary, and related to the accident.
On November 6, 1997, Demond’s attorney faxed a letter to State Farm’s attorney requesting to take the deposition of a representative of DRS. Said letter stated in pertinent part that “[u]nless you intend to withdraw DRS as a witness, expert or lay, we request that you provide dates for the deposition.”
The deposition duces tecum of the DRS corporate representative was thereafter scheduled for December 17, 1997; however, at State Farm’s request, the deposition was rescheduled for January 9, 1998.
State Farm thereafter sent a letter dated December 1, 1997 to Demond’s counsel in which State Farm indicated that it had no intention of calling DRS as an expert witness, but that DRS would be called as a rebuttal or lay witness. Based upon State Farm’s representation that it intended to call DRS as a rebuttal or lay witness, Demond’s counsel refused to cancel the deposition of the corporate representative of DRS.
On December 22, 1997, State Farm filed a Motion for Protective Order requesting that the trial court enter an order limiting the scope of inquiry regarding the deposition of the corporate representative of DRS, and limiting the documents produced by DRS to those documents not privileged which are contained in Demond’s file. A hearing on the motion for protective order was held January 5, 1998; the trial court denied the motion for protective order.
On January 6, 1998, State Farm faxed a Notice of Withdrawal of Expert Witness to Demond’s counsel, stating that it was withdrawing DRS as an expert witness at trial. Also on January 6, 1998, State Farm served its Renewed Motion for Protective Order. In the Renewed Motion for Protective Order, State Farm again requested that the trial court enter an order limiting the scope and inquiry regarding the deposition of the corporate representative of DRS and limiting the documents to be produced to those documents not privileged. A hearing was held on the Renewed Motion for Protective Order on January 8, 1998.
At the hearing, State Farm indicated that it would not be calling DRS for expert testimony, but that it may call DRS as a lay witness “for the simple fact of showing that documents …, [or] medical records were transmitted.” Further, State Farm asked the trial court to deny any kind of discovery.
The trial court granted State Farm’s motion at the hearing, and stated “[b]ased upon the cases that you presented to me, Forman versus Fink and the Gilmor Trading Corp versus Lind Electric, the Court will grant the amended motion for protective order. I would have granted the motion had I known that the expert had been withdrawn.” The trial court’s written order granting the motion states in pertinent part that “Defendant’s Renewed Motion for Protective Order is GRANTED and the deposition scheduled by the Plaintiff for Friday, January 9, 1998, of the Corporate Representative of Document Related Services, Inc., will not go forward”; Demond now seeks review of said order.
It is well established that the essential prerequisite to the granting of a petition for writ of certiorari is action by the lower court which constitutes a departure from the essential requirements of law that will cause material injury to the petitioner throughout the proceedings below, and for which there is no adequate remedy on appeal. See, e.g., Travelers Indemnity Co. v. Hill, 388 So. 2d 648 (Fla. 5th DCA 1980) (citing Brooks v. Owens, 97 So. 2d 693 (Fla. 1957)). Ordinarily, orders denying discovery are not reviewable by certiorari because the harm from such orders can be rectified upon plenary appeal. Ruiz v. Steiner, 599 So. 2d 196 (Fla. 3d DCA 1992). However, certiorari review of discovery orders has been granted where it was found that the injury caused by the order was irreparable. Id. (citations omitted). See also Medero v. Florida Power & Light Co., 658 So. 2d 566 (Fla. 3d DCA 1995).
After commencement of an action, any party may take the testimony of any person by deposition upon oral examination. Fla. R. Civ. P. 1.310(a). The scope of such examination covers all matters not privileged which are relevant to the subject matter of the pending litigation. Murray Van and Storage, Inc. v. Murray, 343 So. 2d 61 (Fla. 4th DCA 1977). “The examination is not limited to what is relevant to the issues, nor is it limited to what would be admissible as evidence at trial.” Id. at 62 (citations omitted).
The deposition of an expert witness who a party intends to call at trial may be taken subject to the restrictions and limitations set forth in Florida Rule of Civil Procedure 1.280(b)(4)(A)(ii). The deposition of an expert who was retained or specially employed by a party in anticipation or preparation for trial, and who is not expected to be called as a witness at trial, may be taken only upon a showing of “exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.” Fla. R. Civ. P. 1.280(b)(4)(C).
Upon motion by a party and “for good cause shown,” the court in which the action is pending may restrict or deny discovery. Fla. R. Civ. P. 1.280(c). In deciding whether good cause has been shown, it is necessary to balance the opposing interests that would be served by granting or denying the discovery. Syken v. Elkins, 644 So. 2d 539, 544 (Fla. 3d DCA 1994) (citations omitted), decision approved by Elkins v. Syken, 672 So. 2d 517 (Fla. 1996). The decision to restrict or deny discovery is in the broad discretion of the trial court. American Southern Co. v. Tinter, Inc., 565 So. 2d 891 (Fla. 3d DCA 1990). Unless an abuse of that broad discretion is shown, the court’s ruling granting or denying a discovery motion will not be disturbed. Id.
Turning to the instant case, this Court must first determine whether the order on review constitutes a departure from the essential requirements of law that will cause material injury to Demond throughout the proceedings below and for which there is no adequate remedy on appeal. Travelers Indemnity Co., 388 So. 2d 648. For the reasons discussed below, we find that the injury caused by the order would be irreparable on plenary appeal, and therefore, that certiorari review is proper in this case.
The issue raised by Demond’s Petition for Writ of Certiorari is whether Demond may depose a representative of DRS based upon State Farm’s indication that it may call DRS as a lay or rebuttal witness and based upon the fact that DRS was the entity responsible for selecting, retaining, and compensating Dr. Arias and Dr. Bennett, the two doctors who reviewed Demond’s records and/or examined Demond, and whose recommendations ultimately resulted in State Farm’s denial of Demond’s PIP benefits.
State Farm argues that Demond is not entitled to depose or obtain documents from DRS because State Farm does not intend to call DRS as an expert witness at trial, and because Demond did not establish “exceptional circumstances” which would enable her to depose DRS and obtain documents from DRS.
If this were merely a situation where DRS had been retained as an expert witness, was thereafter withdrawn as an expert witness, and would not be called to testify at trial in any fashion whatsoever, then State Farm would be correct; Demond would not be entitled to inquire of a representative of DRS without showing “exceptional circumstances.” However, State Farm’s counsel stated at the hearing on the Motion for Protective Order that it may call DRS “for the simple fact of showing that documents …, [or] medical records were transmitted.” Therefore, DRS is still a potential non-expert witness that may be called to testify at trial.
Furthermore, DRS’s involvement in this case was not simply as a conduit for the transmission of documents. At State Farm’s request, DRS reviewed Demond’s PIP claims; selected, retained, and compensated a doctor to review those claims; and selected, retained, and compensated a doctor for conducting an independent medical examination of Demond.
The two cases that the trial court relied upon in its oral order granting State Farm’s Renewed Motion for Protective Order are distinguishable from the instant case. In Forman v. Fink, Fink sought review of the portion of an order that compelled “full and complete discovery” from her former medical expert witness. Forman v. Fink, 646 So. 2d 236, 237 (Fla. 3d DCA 1994), decision approved by Chung v. Fink, 672 So. 2d 34 (Fla. 1996). The Third District Court of Appeal held that “[b]ecause no exceptional circumstances were shown to compel discovery of an expert not expected to testify at trial, we grant the petition and quash [that] part of the trial court’s order.” Id. In Gilmor Trading Corp. v. Lind Electric, Inc., 555 So. 2d 1258 (Fla. 3d DCA 1990), Gilmor sought certiorari review of an order granting Lind’s motion to compel the taking of the depositions of two experts who were retained by Gilmor in anticipation of litigation, but who were not going to be called to testify at trial. The court stated that where an expert is employed in anticipation of litigation but is not expected to be called as a witness at trial, the facts known or opinions held by that expert are deemed work product and may be discovered only upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means. Id. at 1260. The court found that Lind had not demonstrated the necessary exceptional circumstances to justify invading the work-product immunity, and granted the petition for writ of certiorari. Id. Thus, in Forman and Gilmor, the witnesses were involved with the cases solely as expert witnesses, and they were not going to be called to testify at trial.
In the instant case, counsel for State Farm indicated that DRS may be called to testify at trial about the transmission of Demond’s records. State Farm, therefore, obviously recognizes that DRS plays two roles in this case: the role of an expert witness and the role of a lay witness. State Farm may not shield DRS from discovery regarding the “lay witness” matters simply because it no longer intends to call DRS to testify at trial as an expert witness.
The injury caused to Demond by the denial of discovery regarding DRS could not be remedied on appeal. On appeal, there would be no way of determining what the testimony would be regarding DRS’s relationship with State Farm. There would be no way of determining the manner by which DRS selects the doctors to perform the evaluations. And, there would be no way of determining how that testimony would affect the result of the trial.
Based upon DRS’s involvement in the case and based upon the fact that State Farm may still call a representative of DRS to testify at trial regarding DRS’ transmission of documents, Demond is entitled to depose a representative of DRS and obtain through discovery copies of non-privileged documents that DRS has in its possession. Fla. R. Civ. P. 1.280; Fla. R. Civ. P. 1.310.
Therefore, we find the trial court departed from the essential requirements of law by not considering DRS in its capacity as a lay witness, by precluding Demond from deposing DRS in regard to matters for which DRS is a lay witness, and by precluding Demond from obtaining through discovery non-privileged documents from DRS. In other words, rather than deny all discovery with regard to DRS, the trial court should have limited the scope of inquiry at the deposition and limited the documents that DRS would be required to produce.
Based upon the foregoing, it is hereby ORDERED and ADJUDGED that:
1) The Petition for Writ of Certiorari is GRANTED.
2) The order granting State Farm’s Renewed Motion for Protective Order is QUASHED.
3) This matter is REMANDED to the trial court for further proceedings consistent with this opinion.
4) The Clerk of this Court is directed to immediately transmit a certified copy of this Order to the Clerk of the County Court.
(KOMANSKI, RUSSELL, and WATTLES, concur.)
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