7 Fla. L. Weekly Supp. 583a
Insurance — Personal injury protection — Discovery — Financial information — Opposing party’s experts — Plaintiff is entitled to information from insurer regarding relationship between insurer and its named experts — If insurer is unable to provide information, plaintiff must comply with requirements set forth in Elkins v. Syken before trial court can order experts to produce business records and 1099’s related to their relationship with insurer — Trial court departed from essential requirements of law when it required experts to disclose business records and 1099’s without first giving experts an opportunity to respond to interrogatories or be deposed as set forth in Elkins and rule 1.280
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. HELEN NELSON, Respondent. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case No. CVA199-56. Lower Ct. Case No. CO97-3421. May 23, 2000. Maura T. Smith, Walter Komanski, and James C. Hauser, Judges. Petition for Writ of Certiorari. Counsel: Moriarty & Botwin, P.A. Beth A. Moriarty, Winter Park, for Petitioner. Seifert, Miller & Slusher, P.A., Terry A. Slusher, Orlando, for Respondent.
(BEFORE SMITH, KOMANSKI, and HAUSER, JJ.)
ORDER GRANTING PETITION FOR WRIT OF CERTIORARI
(PER CURIAM.) Petitioner, State Farm Mutual Automobile Insurance Company (“State Farm”), seeks certiorari review of a discovery order entered by the trial court compelling its experts to respond to several interrogatories by producing certain business records and 1099s.1 This Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(c)(2). This Court dispenses with oral argument pursuant to Florida Rule of Appellate Procedure 9.320. For the reasons expressed below, the order of the trial court is quashed.
FACTS
On or about April 4, 1997, Nelson filed suit against State Farm for payment of personal injury protection benefits pursuant to section 627.736(4)(b), Florida Statutes. On February 25, 1998, Nelson propounded expert interrogatories to State Farm requesting information regarding State Farm’s use of, and relationship with, its named experts. State Farm served answers and objections to those interrogatories on May 15, 1998. Nelson filed State Farm’s responses with the trial court on May 20, 1998, and set the objections for a hearing to be held on July 16, 1998. That hearing did not go forward and was ultimately reset for November 9, 1998. State Farm did not appear at the November 9, 1998 hearing. The trial court, Halker, J., overruled the objections and entered an order on November 23, 1998, directing State Farm to respond to the interrogatories.
On January 12, 1999, Nelson filed a Motion for Entry of Order to Show Cause/Motion to Strike requesting that the trial court enter an Order to Show Cause directed to State Farm regarding its failure to comply with the trial court’s order of November 23, 1998. On February 17, 1999, State Farm filed supplemental answers, providing answers to interrogatories 13, 14, 15, 16, and 18 that generally stated that State Farm did not possess the requested information. Nelson then filed a Motion to Compel seeking better answers to the interrogatories. The subject interrogatories at issue and the responses received are as follows:
Interrogatory #13. If this case involves performance of a medical examination or records review by any expert listed above, identify the number of medical examinations or records reviews such expert has performed for the Defendant or any agent, employee or independent records review agency retained by the Defendant and any of its affiliates, agents or successors in interest for the years a. 1994; b. 1995; c. 1996; d. 1997-present.
Response Defendant is unable to answer question number thirteen due to the fact that Defendant does not keep records as to the number of times an expert witness is retained. Petitioner Insurance Company contacted NTC (sic) Incorporated to arrange for the two physicians who conducted peer reviews in this case. As stated earlier, those physicians are David Bennett, D.C. and Brent Owens, D.C.
Interrogatory #15. Identify the percentage of annual income earned by any expert listed above for services as an expert, either providing medical examinations, records reviews litigation consulting services or providing deposition or trial testimony for the years: a. 1994; b. 1995; c. 1996; d. 1997-present.
Response Defendant is unable to answer question number fifteen due to the fact that Defendant does not keep records as to the number of times an expert witness is retained. Petitioner Insurance Company contacted NTC (sic) Incorporated to arrange for the two physicians who conducted peer reviews in this case. As stated earlier, those physicians are David Bennett, D.C. and Brent Owens, D.C.
Interrogatory #16. Identify the number of hours expended annually by any expert listed above in providing services as an expert and the percentage of such time expended for Plaintiffs versus Defendants for the years: a. 1994; b. 1995; c. 1996; d. 1997-present.
Response Defendant is unable to answer question number sixteen due to the fact that Defendant does not keep records as to the number of times an expert witness is retained. Petitioner Insurance Company contacted NTC (sic) Incorporated to arrange for the two physicians who conducted peer reviews in this case. As stated earlier, those physicians are David Bennett, D.C. and Brent Owens, D.C.
Interrogatory #18. For each case in which any expert listed above has provided any expert testimony, either by deposition or at trial, in the last three (3) years, identify specifically the case name, number and court in which case was filed and whether the expert testified for the Plaintiff or Defendant.
Response Defendant is unable to answer question number eighteen due to the fact that Defendant does not keep records as to the number of times an expert witness is retained. Petitioner Insurance Company contacted NTC (sic) Incorporated to arrange for the two physicians who conducted peer reviews in this case. As stated earlier, those physicians are David Bennett, D.C. and Brent Owens, D.C.
On May 10, 1999, the trial court held a hearing on Nelson’s Motion to Compel. At the hearing, Nelson provided the trial court with copies of expert interrogatories that had previously been served on State Farm in the case of Kristina Demond v. State Farm Mutual Automobile Insurance Company, Case No. CO95-11048, and State Farm’s answers thereto. Nelson also provided the trial court with a document from Medical Technology Consultants, Inc. (“MTC, Inc.”) that indicated that contracts with regard to expert testimony are negotiated between the insurer and the expert directly. As a result of the hearing, the trial court ordered State Farm’s experts to produce certain business records if State Farm was unable to provide the information requested. Specifically, the trial court found as follows:
Interrogatory #13. Plaintiff’s Motion to Compel Answers to Expert Interrogatory 13 is granted with regard to calendar years 1996, 1997, and 1998. Defendant is ordered to provide the information requested in Interrogatory 13 or, in the alternative, the physicians listed as experts by Defendant in the answers to expert interrogatories will be required to produce tax forms and business records from which Plaintiff will be able to obtain the requested information. These business records will include tax forms, 1099 forms, calendars, subpoenas for deposition and/or trial, and any and all other records in the possession of the listed experts from which the requested information can be obtained.
Interrogatory #15. Plaintiff’s Motion to Compel Answer to Expert Interrogatory 15 is granted with regard to calendar years 1996, 1997 and 1998. Defendant is ordered to provide the information requested in Interrogatory 15 or, in the alternative, the physicians listed as experts by Defendant in the answers to expert interrogatories will be required to produce tax forms and business records from which Plaintiff will be able to obtain the requested information. These business records will include tax forms, 1099 forms, calendars, subpoenas for deposition and/or trial, and any and all other records in the possession of the listed experts from which the requested information can be obtained.
Interrogatory #16. Plaintiff’s Motion to Compel Answers to Expert Interrogatory 16 is granted with regard to calendar years 1996, 1997 and 1998. Defendant is ordered to provide the information requested in Interrogatory 16 or, in the alternative, the physicians listed as experts by Defendant in the answers to expert interrogatories will be required to produce tax forms and business records from which Plaintiff will be able to obtain the requested information. These business records will include tax forms, 1099 forms, calendars, subpoenas for deposition and/or trial, and any and all other records in the possession of the listed experts from which the requested information can be obtained.
Interrogatory #18. Plaintiff’s Motion to Compel Answers to Expert Interrogatory 18 is granted with regard to calendar years 1997 and 1998. Defendant is ordered to provide the information requested in Interrogatory 18 or, in the alternative, the physicians listed as experts by Defendant in the answers to expert interrogatories will be required to produce tax forms and business records from which Plaintiff will be able to obtain the requested information. These business records will include tax forms, 1099 forms, calendars, subpoenas for deposition and/or trial, and any and all other records in the possession of the listed experts from which the requested information can be obtained.
The trial court further stated that:
The Defendant may comply with this Order by providing the information requested in answer to expert interrogatories 13, 15, 16 & 18 as stated above, or, in the alternative, by providing billing records, 1099 forms or other documents within the control of the Defendant or its listed experts from which the requested information can be obtained on or before June 1, 1999, to the Plaintiff.
As a part of its Order, the trial court found that State Farm’s failure to maintain the records and the resulting inability to provide better answers constituted an “exceptional circumstance” entitling Nelson to discovery directly from State Farm’s experts. It is this Order that is the subject of the present certiorari review proceeding.
STANDARD OF REVIEW
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 Allstate Ins. Co. v. Langston, 655 So. 2d 91 (Fla. 1995); Travelers Indemnity Co. v. Hill, 388 So. 2d 648 (Fla. 5th DCA 1980). Certiorari review is the proper method by which to seek review of discovery orders. See Carrera v. Casas, 695 So. 2d 763 (Fla. 3d DCA 1997).
DISCUSSION
State Farm argues that the trial court cannot compel it to provide information it does not have and that the trial court cannot require that such information be provided by non-party experts where Nelson has failed to comply with Elkins v. Syken, 672 So. 2d 517 (Fla. 1996) and Florida Rule of Civil Procedure 1.280.
In Elkins v. Syken, 672 So. 2d 517 (Fla. 1996), the Florida Supreme Court adopted criteria set forth by the Third District Court of Appeal regarding what information an opposing party is entitled to obtain from a non-party expert witness. At the trial court level, defense expert witnesses were ordered to produce tax records, income tax returns, and information regarding patients who were examined for purposes of litigation in unrelated cases. The District Court found that the requested information was overly burdensome and provided little useful information. The Florida Supreme Court agreed with the District Court and found that a balance needed to be struck between a party’s right to demonstrate bias and an expert witness’ right not to be annoyed, embarrassed, or unduly burdened by such requests.
The eight criteria to be followed in seeking financial information from opposing medical experts are:
1. The medical expert may be deposed either orally or by written deposition.
2. The expert may be asked as to the pending case, what he or she has been hired to do and what the compensation is to be.
3. The expert may be asked what expert work he or she generally does. Is the work performed for the plaintiffs, defendants, or some percentage of each?
4. The expert may be asked to give an approximation of the portion of their professional time or work devoted to service as an expert. This can be a fair estimate of some reasonable and truthful component of that work, such as hours expended, or percentage of income earned from that source, or the approximate number of IME’s that he or she performs in one year. The expert need not answer how much money he or she earns as an expert or how much the expert’s total annual income is.
5. The expert may be required to identify specifically each case in which he or she has actually testified, whether by deposition or at trial, going back a reasonable period of time, which is normally three years. A longer period of time may be inquired into under some circumstances.
6. The production of the expert’s business records, files, and 1099’s may be ordered produced only upon the most unusual or compelling circumstance.
7. The patient’s privacy must be observed.
8. An expert may not be compelled to compile or produce nonexistent documents.
Elkins, 672 So. 2d at 521. Thus, Nelson is entitled to request this information from State Farm’s experts and they are required to give reasonable answers. If the experts are unable to provide this information, and if other unusual or compelling circumstances exist, then the trial court may require the experts to produce their 1099s and business records. This ruling was adopted and made a part of Florida Rule of Civil Procedure 1.280.
Recently, in Allstate Insurance Company v. Boecher, 733 So. 2d 993 (Fla. 1999), the Florida Supreme Court addressed a related discovery issue. The question presented was what information regarding a party’s relationship with an expert could be requested from the party. The Florida Supreme Court specifically found that the limitations of Elkins v. Syken and Florida Rule of Civil Procedure 1.280(b)(4)(A)(iii) did not apply where such information was requested from a party. Boecher, 733 So. 2d at 998-99. The Florida Supreme Court found that “where the discovery sought is directed to a party about the extent of that party’s relationship with a particular expert, the balance of interests shifts in favor of allowing the pretrial discovery.” Boecher, 733 So. 2d at 997. Based upon the holding in Boecher, Nelson is permitted to discover information related to State Farm’s relationship with its defense experts from State Farm.
In this case, State Farm failed to properly object or argue its objections to the interrogatories before the trial court and the trial court directed that State Farm answer the interrogatories. Thereafter, State Farm answered the interrogatories and claimed that it did not have the information that Nelson sought regarding the defense experts in this case. After the hearing on Nelson’s Motion to Compel, the trial court decided that someone had the information Nelson sought and directed that either State Farm produce the information or that the defense experts produce the information in the form of business records and 1099s. At the time, the subject interrogatories had not been propounded to the experts and the experts had not been deposed. The trial court appears to have based its ruling in part on interrogatories that State Farm was able to answer in another case related to the same defense expert that State Farm disclosed in this case. The trial court also relied specifically on the holding in Orkin Exterminating Company, Inc. v. Knollwood Properties, Ltd., 710 So. 2d 697 (Fla. 5th DCA 1998).
Knollwood is distinguishable from the instant case. In that case, the expert testified at a deposition that he was unable to provide a list of all the court cases in which he had testified, conducted an investigation, or prepared reports for the last ten years. Id. at 698. The court directed that either Orkin or the expert provide Knollwood with the requested information for the last three years or provide documents in their control which could provide the relevant information. The court held that if Orkin failed to comply, the expert would not be permitted to testify at trial. The Fifth District Court of Appeal found that the order complied with Elkins.
The distinction between the instant case and Knollwood is that State Farm’s experts have not stated that they cannot provide the requested information. If State Farm’s experts can reasonably provide the information sought by Nelson, then Nelson is not entitled to their business records. See Gramman v. Stachkunas, 750 So. 2d 688 (Fla. 5th DCA 1999).
The Court finds that the trial court ultimately has the authority to order the subject discovery. The problem with the trial court’s Order, however, is that it skips several of the criteria in Elkins. The Florida Supreme Court’s ruling in Boecher was not meant to create an end run around the requirements of Elkins and Florida Rule of Civil Procedure 1.280(b)(4)(A)(iii).
Nelson is clearly entitled to information from State Farm regarding the relationship between State Farm and its experts. State Farm must provide the information to Nelson. If, however, State Farm is unable to provide the information, then Nelson must still comply with Elkins before the trial court can order State Farm’s experts to produce business records and 1099’s related to their relationship with State Farm. The Court finds that the trial court departed from the essential requirements of the law when it required State Farm’s experts to disclose business records and 1099s to Nelson without first giving those experts the opportunity to respond to interrogatories or be deposed as set forth in Elkins and Florida Rule of Civil Procedure 1.280.
Based upon the foregoing, it is hereby
ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is GRANTED. (SMITH, KOMANSKI, and HAUSER, JJ., concur.)
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1State Farm originally filed a Notice of Appeal in this matter. On August 13, 1999, this Court entered an order directing that this matter would be treated as though the proper remedy, certiorari review, had been timely sought.
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