Allstate Ins. Co. v. Boecher, 97-2644
| Citation | 705 So.2d 106 |
| Decision Date | 21 January 1998 |
| Docket Number | No. 97-2644,97-2644 |
| Parties | 23 Fla. L. Weekly D268 ALLSTATE INSURANCE COMPANY, Petitioner, v. Robert BOECHER, Respondent. |
| Court | Court of Appeal of Florida (US) |
Richard A. Sherman of Law Offices of Richard A. Sherman, P.A., Fort Lauderdale, and Robert R. Reynolds, IV of Dickstein, Reynolds & Woods, West Palm Beach, for petitioner.
Julie H. Littky-Rubin of Lytal, Reiter, Clark, Sharpe, Roca, Fountain & Williams, West Palm Beach, for respondent.
We deny this petition for certiorari review of an order overruling objections to interrogatories in automobile accident litigation, but take the time to explain why recent amendments to rule 1.280 limiting discovery from expert witnesses do not apply.
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 the fees Allstate had paid Biodynamics nationally and during the preceding three years. These same interrogatories were also propounded directly to Biodynamics, the witness itself.
Biodynamics' objections were deferred, but a hearing was held on Allstate's objections to the interrogatories. Allstate argued that the questions were overbroad and burdensome, claiming that such records were not kept and would have to be compiled, and the information requested would be impossible to ascertain without great financial hardship. 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.
The criteria approved by the supreme court in Elkins were the basis for an amendment to rule 1.280, Florida Rules of Civil Procedure, effective January 1, 1997. See In re Amendments to Florida Rules of Civil Procedure, 682 So.2d 105, 106 (Fla.1996) (adding rule 1.280(b)(4)(A)(iii)). The new provision lists the kinds of discovery a party may obtain from another party's expert witness. A portion of that rule provides, "[a]n expert may be required to produce financial and business records only under the most unusual or compelling circumstances and may not be compelled to compile or produce nonexistent documents." Fla.R.Civ.P. 1.280(b)(4)(A)(iii). Under the new rule, the claimant plainly could not discover this information directly from the expert witness itself.
Allstate claims that the claimant sought to circumvent the rule by seeking to discover from Allstate, qua party defendant, that which under the rule it could not discover from Biodynamics. The third district refused to permit that tactic in Carrera v. Casas, 695 So.2d 763 (Fla. 3d DCA 1997) (). We disagree with the third district and certify conflict.
Elkins concerned undue burdens placed on expert witnesses, who are not parties to the lawsuit. 672 So.2d at 522 (). The supreme court's opinion plainly focuses on the hardships placed on the expert witnesses themselves as a result of overly burdensome discovery requests made applicable personally on the witnesses rather than the party. 1 The court justified its holding by stating that:
"an overly burdensome, expensive discovery process will cause many qualified experts, including those who testify only on an occasional basis, to refrain from participating in the process, particularly if they have the perception that the process could invade their personal privacy."
672 So.2d at 522. Moreover, the text of rule 1.280(b)(4)(A)(iii...
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