Allstate Ins. Co. v. Boecher

• Decision Date: 22 April 1999
• Docket Number: No. 92,436,92,436
• Citation: 733 So.2d 993
• Parties: ALLSTATE INSURANCE COMPANY, Petitioner, v. Robert BOECHER, Respondent.
• Court: Florida Supreme Court

733 So.2d 993

ALLSTATE INSURANCE COMPANY, Petitioner, v. Robert BOECHER, Respondent.

No. 92,436

Supreme Court of Florida.

April 22, 1999.

Richard A. Sherman and Rosemary B. Wilder of the Law Offices of Richard A. Sherman, P.A., Fort Lauderdale, Florida, and Robert R. Reynolds, IV of Dickstein, Reynolds & Woods, West Palm Beach, Florida, for Petitioner.

Julie H. Littky-Rubin of Lytal, Reiter, Clark, Fountain & Williams, L.L.P., West Palm Beach, Florida, for Respondent.

PARIENTE, J.

We have for review Allstate Insurance Co. v. Boecher, 705 So.2d 106 (Fla. 4th DCA 1998), in which the Fourth District certified conflict with Carrera v. Casas, 695 So.2d 763 (Fla. 3d DCA 1997), regarding whether this Court's decision in Elkins v. Syken, 672 So.2d 517 (Fla.1996), or Florida Rule of Civil Procedure 1.280(b)(4)(A)(iii) prevents discovery requests from being propounded directly to a party regarding the extent of that party's use of and payment to a particular expert. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We conclude that neither our decision in Elkins nor Florida Rule of Civil Procedure 1.280(b)(4)(A)(iii) prevents this type of discovery and therefore approve the result in Boecher.

The relevant facts are set forth in the Boecher opinion denying certiorari review of the trial court's order on discovery:

This is a suit by the alleged victim of an accident against Allstate Insurance, his uninsured motorist carrier. On the basis that Allstate would call Biodynamics Research Corporation (an accident reconstruction and injury causation expert employed by the UM carrier) as an expert in this case, the claimant propounded interrogatories to Allstate as to information concerning the relationship between the UM carrier and Biodynamics. The questions sought the identity of cases in which Biodynamics had performed analyses and rendered opinions for Allstate nationally and in the preceding three years. The questions also sought to learn the amount of fees Allstate had paid Biodynamics nationally and during the preceding three years.

Boecher, 705 So.2d at 106.

The trial court overruled Allstate's objections:

Because the discovery in question was directed to Allstate, a party, and not to the expert, the trial court found inapplicable Elkins v. Syken, 672 So.2d 517 (Fla.1996), in which the supreme court approved a district court's decision quashing, as overly burdensome, an order requiring expert witness physicians to produce tax records and information regarding patients examined for litigation purposes. The trial court reasoned that requiring such discovery from a party was not as "invasive" as requiring it directly from the expert.

Id. at 106-07. The Fourth District agreed with the trial court based on its reading of Elkins, the policy concerns of that decision, and the language of rule 1.280(b)(4)(A)(iii). See id. at 106-08; see also State Farm Mut. Auto. Ins. Co. v. Berg, 721 So.2d 835 (Fla. 5th DCA 1998)

(denying a petition for certiorari review, citing Boecher).

In Carrera, the conflict case, one party sought to discover from the opposing party the amount the opposing party paid to their expert witness in other cases where the party had retained the expert. The Third District did not address the relevancy of the request but determined that the request exceeded the permissible scope of the rule and Elkins. See Carrera, 695 So.2d at 764-65

. In State Farm Mutual Automobile Insurance Co. v. Adair, 722 So.2d 958, 960-61 (Fla. 3d DCA 1998), the Third District reaffirmed its decision in Carrera and its disagreement with Boecher.

The issue presented for our review is whether a party is prohibited from obtaining discovery from the opposing party regarding the extent of that party's relationship with an expert. We consider only the conflict issue. We specifically do not decide whether, as Allstate contends, the discovery sought in this case was unduly burdensome.¹ We note, however, that at the time the Fourth District rendered its decision in Boecher, there were no affidavits, depositions, or other sworn testimony in the record to support Allstate's claims of undue burden. 705 So.2d at 108.² As stated in the seminal case of Surf Drugs, Inc. v. Vermette, 236 So.2d 108, 111 (Fla.1970), "[a] primary purpose in the adoption of the Florida Rules of Civil Procedure is to prevent the use of surprise, trickery, bluff and legal gymnastics." See also Schlagenhauf v. Holder, 379 U.S. 104, 114-15, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964)

(rules of discovery should be afforded "`broad and liberal treatment' to effectuate their purpose that" trials should not be "`carried on in the dark'") (quoting Hickman v. Taylor, 329 U.S. 495, 501, 507, 67 S.Ct. 385, 91 L.Ed. 451 (1947)). Our 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." Fla. R. Civ. P. 1.280(b)(1).

In Surf Drugs, we recognized four exceptions to the general rule requiring complete discovery that are still applicable today:

(1) The subject matter of the discovery procedure must be relevant to the cause.

(2) Discovery procedures may not be used or conducted to harass or embarrass litigants or witnesses or for malicious purposes.

(3) The inquiry must not invade the ancient and necessary right of privileged communications between lawyers and clients.[³]

(4) The work product of the litigant, his attorney or agent, cannot be examined, absent rare and exceptional circumstances.

236 So.2d at 111-12 (footnotes omitted). Further, rule 1.280(c), entitled "Protective Orders," allows a party or the person from whom discovery is sought "for good cause shown" to obtain a court order to "protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense that justice requires." Fla. R. Civ. P. 1.280(c).

This Court has not shrunk from condemning any practice that "undermines the integrity of the jury system which exists to fairly resolve actual disputes between our citizens." Dosdourian v. Carsten, 624 So.2d 241, 243 (Fla.1993); see also Government Employees Ins. Co. v. Krawzak, 675 So.2d 115, 118 (Fla.1996)

. Only when all relevant facts are before the judge and jury can the "search for truth and justice" be accomplished. Dodson v. Persell, 390 So.2d 704, 707 (Fla.1980). As was observed in Dosdourian, "[u]nder our adversary system a jury can usually assume that the parties and their counsel are motivated by the obvious interests each has in the litigation," but, when the alignment of interests is unclear, "[t]he fairness of the system is undermined." 624 So.2d at 243.

With these guiding principles providing the framework for our modern discovery practice and the trial of a lawsuit, we examine our decision in Elkins. In Elkins, the discovery requests in the consolidated cases were directed not to the parties, but to the expert medical witnesses who had performed compulsory physical examinations (IMEs)⁴ of the plaintiffs. The discovery orders required the physicians to produce the number of IMEs performed by them in the preceding years, the amount of income and percentages of income earned from IMEs, the number of IME exams performed for insurance carriers and for defense attorneys, the identity of every person the expert had examined at the request of defense counsel, as well as all billing and payment information related to examinations and opinions rendered at the request of any insurance company or law firm. See Elkins672 So.2d at 519-20.

The en banc court of the Third District quashed the trial court's orders, finding the requests to the defense expert physicians to be unduly burdensome, while yielding "little useful information." Syken v. Elkins, 644 So.2d 539, 545 (Fla. 3d DCA 1994). We quoted with approval the Third District's observations that

decisions in this field have gone too far in permitting burdensome inquiry into the financial affairs of physicians, providing information which "serves only to emphasize in unnecessary detail that which would be apparent to the jury on the simplest cross-examination: that certain doctors are consistently chosen by a particular side in personal injury cases to testify on its respective behalf."

The production of the information ordered in the cases before us causes annoyance and embarrassment, while providing little useful information. In Syken, the court ordered additional discovery which, in light of the doctor's affidavit, is only duplicative, annoying and oppressive. In Plaza, the information necessary to demonstrate the basis for a claim of bias is most likely readily available through oral or written deposition without intrusive and improper examination of the doctor's 1099 forms and federal income tax returns. The least burdensome route of discovery, through oral or written deposition, was simply not followed.

Elkins, 672 So.2d at 521-22 (quoting Syken, 644 So.2d at 545) (citations omitted) (emphasis supplied). The Third District set forth eight criteria⁵ to be followed in seeking financial information from an expert "in an effort to prevent the annoyance, embarrassment, oppression, undue burden, or expense, claimed on behalf of the medical experts." Id. at 521 (quoting Syken, 644 So.2d at 546-47) (emphasis supplied). This Court subsequently adopted those criteria. See Elkins, 672 So.2d at 522

.

In rejecting the argument that the information was necessary to explore the bias of the expert witness, this Court balanced the probative value of the information sought against the annoyance and embarrassment to the expert physicians caused by the discovery requests. See id. at 521-22. The Court concluded that the Third District's criteria struck a "reasonable balance between a party's need for information concerning an expert witness's potential bias...