Morgan, Colling & Gilbert, PA v. Pope
| Citation | 798 So.2d 1 |
| Decision Date | 25 July 2001 |
| Docket Number | No. 2D01-97.,2D01-97. |
| Parties | MORGAN, COLLING & GILBERT, P.A., Petitioner, v. James E. POPE, M.D., Heartcare Institute of Tampa, P.A., Alise Pastorik, Arnp, and Florida Medical Clinic, P.A., Respondents. |
| Court | Florida District Court of Appeals |
H. Scott Bates of Morgan, Colling & Gilbert, P.A., Orlando, for Petitioner.
Thomas Saieva and Leslie A. Stine of Saieva, Rousselle & Stine, P.A., Tampa, for Respondents.
The petitioner (Morgan Colling) seeks certiorari review of a pretrial discovery order. We dismiss the petition.
Morgan Colling represents the plaintiff in a medical malpractice action against the respondents. Pursuant to a pretrial order, the plaintiff disclosed the identity of two medical expert witnesses. Although each physician was deposed, neither was able to provide sufficient information regarding its financial relationship with Morgan Colling. The respondent then sought production of the information directly from Morgan Colling, which moved for a protective order. After a hearing, the circuit court ordered Morgan Colling to produce deposition and trial transcripts of the expert witnesses that it possessed as well as copies of billing invoices submitted by the experts to Morgan Colling for the previous three years, including those submitted for the pending malpractice action.1 Now, Morgan Colling seeks certiorari review of that order in this court.
Appellate courts do not have automatic certiorari jurisdiction to review every discovery order, even if erroneous. Instead, review by certiorari is "appropriate when a discovery order departs from the essential requirements of law, causing material injury to a petitioner throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal." Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995). Often, discovery of financial information will not create irreparable harm. Martin-Johnson, Inc. v. Savage, 509 So.2d 1097 (Fla. 1987).
Our analysis begins with Allstate Insurance Co. v. Boecher, 733 So.2d 993 (Fla. 1999), which provides guidance on the underlying policy that might sanction disclosure of the sought-after information but which contains a significant and obvious factual distinction. In Boecher the discovery order was directed to a named party, Allstate Insurance Company. In this case, however, the order is directed to the nonparty attorneys of the plaintiff. Nevertheless, the supreme court focused in Boecher on the jury's truth-seeking function and the corresponding fairness of a jury trial. That focus is no less applicable to this situation than it was in Boecher. Furthermore, there exist a number of significant factual similarities between Boecher and this matter:
(1) Each respondent inquired into the extent of a financial relationship between an expert witness and a key actor in the pending litigation.
(2) The sought-after information would reveal how much money the expert made from its relationship with the petitioner.
(3) The information is directly relevant to the respondent's efforts to demonstrate a witness's bias. As the supreme court implied in Boecher, the more extensive and ongoing the financial relationship between the party and the expert witness, the greater the witness's interest in continuing that relationship. Boecher, 733 So.2d at 993 () A witness's financial incentive to continue an advantageous association is no less applicable to an attorney who hires the witness than to a party who does the same thing and, in either instance, could indicate a degree of bias not immediately apparent to a jury.
(4) Limiting discovery of this information would affect the truth-seeking function of a jury, for the failure to present any ultimately admissible information would diminish the jury's right to assess the potential bias of the witness. As the Third District recently explained in Flores v. Miami-Dade County, 787 So.2d 955 (Fla. 3d DCA 2001), "As illustrated by Elkins v. Syken, 672 So.2d 517 (Fla.1996), and Florida Rule of Civil Procedure 1.280(b)(4)(A), there must be reasonable latitude for inquiry about the extent of a trial expert's alignment with one side, or another, of litigation practice."
In considering a petition for certiorari the reviewing court's first duty is to assess whether the petitioner has made a prima facie showing that the...
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...the petitioner does not make such a showing, the court lacks jurisdiction and will dismiss the petition.” Morgan, Colling & Gilbert, P.A. v. Pope, 798 So.2d 1, 3 (Fla. 2d DCA 2001) (citing Bared & Co. v. McGuire, 670 So.2d 153, 157 (Fla. 4th DCA 1996) (en banc)). If the petitioner has made ......
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