Allstate Ins. Co. v. Hodges

• Decision Date: 15 August 2003
• Docket Number: No. 2D03-281.,2D03-281.
• Citation: 855 So.2d 636
• Parties: ALLSTATE INSURANCE COMPANY, Petitioner, v. Catherine M. HODGES, Respondent.
• Court: Florida District Court of Appeals

855 So.2d 636

ALLSTATE INSURANCE COMPANY, Petitioner, v. Catherine M. HODGES, Respondent.

No. 2D03-281.

District Court of Appeal of Florida, Second District.

August 15, 2003.

Richard A. Sherman, Sr., of Law Offices of Richard A. Sherman, P.A., Fort Lauderdale; and Lynne E. Dailey of George, Hartz, Lundeen, Fulmer, Johnstone, King & Stevens, Fort Myers, for Petitioner.

Thomas M. Pflaum, Micanopy; and Randall L. Spivey of Associates & Bruce L. Scheiner, Fort Myers, for Respondent.

STRINGER, Judge.

Allstate Insurance Company seeks certiorari review of the trial court's order granting Catherine M. Hodges' motion to compel discovery in this automobile injury case. Allstate argues that the trial court departed from the essential requirements of the law in (1) ordering Allstate to answer interrogatories concerning the relationship between Allstate and three medical groups with which Allstate's doctors were affiliated, and (2) declining to require Hodges to post a bond for the estimated cost of complying with the court order. We conclude that the trial court did not depart from the essential requirements of the law in ordering Allstate to answer the interrogatories or in denying Allstate's request that Hodges post a bond in this case. Accordingly, we deny the petition.

This was a standard automobile accident, alleging soft-tissue injuries. Hodges propounded the following interrogatories to Allstate:

1. Please identify each case in which members, employees, or experts of Florida Neurology Group and/or Neurology Specialists of Southwest Florida have testified as an expert witness by deposition during the past three years for ALLSTATE INSURANCE COMPANY.

2. Please identify each case in which members, employees, or experts of Florida Neurology Group and/or Neurology [S]pecialists of Southwest Florida have testified as an expert witness in trial during the past three years for ALLSTATE INSURANCE COMPANY.

3. For the past three years, how many litigation cases [h]as Florida Neurology Group and/or Neurology [S]pecialists of Southwest Florida performed an analysis, examination or rendered opinions for ALLSTATE INSURANCE COMPANY.

4. Please identify the total amount of money that members, employees, or experts of Florida Neurology Group and/or Neurology [S]pecialists of Southwest Florida have been paid during the past three years by ALLSTATE INSURANCE COMPANY.

5. Please identify each case in which members, employees, or experts of Neurology Associates of Lee County have testified as an expert witness by deposition during the past three years for ALLSTATE INSURANCE COMPANY.

6. Please identify each case in which members, employees, or experts of Neurology Associates of Lee County have testified as an expert witness in trial during the past three years for ALLSTATE INSURANCE COMPANY.

7. For the past three years, how many litigation cases [h]as Neurology Associates of Lee County performed an analysis, examination or rendered opinions for ALLSTATE INSURANCE COMPANY.

8. Please identify the total amount of money that members, employees, or experts of Neurology Associates of Lee County have been paid during the past three years by ALLSTATE INSURANCE COMPANY.

9. Please state the taxpayer identification number of the Defendant, ALLSTATE INSURANCE COMPANY.

Allstate's answers to the interrogatories refer to the attached affidavit of James McKay. In the affidavit, McKay states that there is no central file, document, record, or database currently in existence at Allstate that contains all the information requested. Allstate can furnish the total amount paid to the doctors from the 1099 tax forms, but this does not reveal the specific medical or healthcare services provided by the doctors. Payments reflected in the 1099s could be for (1) treatment of an Allstate insured, (2) treatment of a claimant injured by an Allstate insured, (3) reimbursement for deposition or trial testimony, (4) consulting, or (5) an independent medical examination.

The affidavit further reveals that for the calendar years of 1999 through 2001, Allstate made 683 payments to Neurology Specialists of Southwest Florida and 162 payments to Neurology Associates of Lee County, for a total of 845 payments. Allstate paid Neurology Specialists of Southwest Florida $225,725.34 from 1999 through 2001 and paid Neurology Associates of Lee County $22,253.07 during the same period. The list does not identify the purpose of the payments or which specific physician performed the service. A review of the actual claim files would need to be made to determine the purpose of the payments. It would take two minutes to locate each file, and since approximately fifty percent are in storage and it costs Allstate $2 per file for retrieval from storage, this would cost $845. Then it would take two to four weeks to retrieve the files. It would take approximately thirty minutes per file to review the file, which would be 422 hours. This would take two adjusters, working forty hours a week, five weeks to complete the review. The total cost of providing complete answers to the interrogatories would be $11,885.

Also attached to the answers are the affidavits of Joseph Bonk, David Rogers, and Jule Mann. Bonk states that Allstate has a mainframe computer which purges information after a period of time, except for payments reported to the IRS, and that the computer system does not have, and cannot retrieve, the information requested. Rogers avers that once a claim check is received from the bank, the status of the check is changed to a "paid" status and is purged from the data list in thirty to ninety days. The information requested is not on the computers and cannot be retrieved. Mann states that there is no information on the computer from which the specific purpose of payments can be retrieved.

Hodges filed a motion to compel better interrogatory answers, which alleged that the Florida Supreme Court case of Allstate Insurance Co. v. Boecher, 733 So.2d 993 (Fla.1999), requires Allstate to answer these interrogatories. The trial court agreed and subsequently entered an order granting Hodges' motion to compel. Allstate filed a motion for rehearing and/or to post bond for discovery costs, which the trial court denied. It is from these orders that Allstate seeks certiorari review.

Discovery

In order for a party to be entitled to a writ of certiorari, it must show that the order departs from the essential requirements of the law causing material injury to the petitioner. Allstate Ins. Co. v. Langston, 655 So.2d 91, 94-95 (Fla. 1995). In other words, the petitioner must show that there has been a violation of a clearly established principle of law that resulted in a miscarriage of justice. Combs v. State, 436 So.2d 93, 96 (Fla.1983). Most economic concerns regarding the cost of litigation do not involve the essential requirements of the law or a violation of a clearly established principle of law resulting in a miscarriage of justice. Topp Telecom, Inc. v. Atkins, 763 So.2d 1197, 1199 (Fla. 4th DCA 2000).

Information regarding the frequency of an expert's testimony and the corresponding payments to the expert is discoverable from the defendant insurer in a personal injury action. Allstate Ins. Co. v. Boecher, 733 So.2d 993, 997 (Fla.1999). Specifically, information regarding how often the expert testified on behalf of the insurer and how much money the expert has been paid due to its relationship with the insurer is "directly relevant to a party's efforts to demonstrate to the jury a witness's bias." Id. The rationale for allowing such discovery has been explained as follows:

A jury is entitled to know 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. A party is entitled to argue to the jury that a witness might be more likely to testify favorably on behalf of the party because of the witness's financial incentive to continue the financially advantageous relationship.

Any limitation on this inquiry has the potential for thwarting the truth-seeking function of the trial process.... To limit this discovery would potentially leave the jury with a false impression concerning the extent of the relationship between the witness and the party by allowing a party to present a witness as an independent witness when, in fact, there has been an extensive financial relationship between the party and the expert. This limitation thus has the potential for undermining the truth-seeking function and fairness of the trial.

Id. at 997-98.

Since Boecher, this court has dismissed a petition for certiorari seeking to quash an order requiring the petitioner to produce copies of billing invoices submitted by the experts to the petitioner's counsel for the previous three years. See Morgan, Colling & Gilbert, P.A. v. Pope, 798 So.2d 1 (Fla. 2d DCA 2001)

. In so ruling, this court noted the following four factual similarities between its case and Boecher: (1) each respondent sought information regarding the extent of a financial relationship between an expert witness and a key party in the litigation; (2) the information would disclose the amount of money the expert was paid as a result of its relationship with the petitioner; (3) the information was directly relevant to show bias of the witness; and (4) limiting the discovery of the information "would affect the truthseeking 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." Id. at 2-3.

This case contains the same four factual similarities to Boecher that were noted in Pope. First, in this case, the respondent, Hodges, sought information regarding the extent of the financial relationship between expert witnesses and the petitioner. Hodges specifically sought information regarding the name of the cases in which the experts testified in deposition or...