Elkins v. Syken

• Decision Date: 11 April 1996
• Docket Number: No. 84649,84649
• Parties: 21 Fla. L. Weekly S159 Max ELKINS, et al., Petitioners, v. Elisa SYKEN, et al., Respondents.
• Court: Florida Supreme Court

Page 517

672 So.2d 517

21 Fla. L. Weekly S159

Max ELKINS, et al., Petitioners, v. Elisa SYKEN, et al., Respondents.

No. 84649.

Supreme Court of Florida.

April 11, 1996.

Application for Review of the Decision of the District Court of Appeal--Certified Direct Conflict of Decisions, Third District--Case Nos. 93-1299 & 92-2317 (Dade County).

Robert A. Robbins of Robbins & Reynolds, P.A., Miami, Joel S. Perwin of Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin, P.A., Miami, Barbara Green, Miami, and Richard A. Friend and Richard A. Warren, South Miami, for Petitioners.

James T. Sparkman of Clark, Sparkman, Robb, Nelson & Mason, Fort Lauderdale, and Raoul G. Cantero, III and Jared Gelles of Adorno & Zeder, P.A., Miami, for Respondents.

Roy D. Wasson, Miami, for The Academy of Florida Trial Lawyers, Amicus Curiae.

Paul R. Regensdorf of Fleming, O'Bryan & Fleming, P.A., Fort Lauderdale, for The Florida Defense Lawyers Association, Amicus Curiae.

OVERTON, Justice.

This is a petition to review the Third District Court of Appeal's en banc decision in Syken v. Elkins, 644 So.2d 539 (Fla. 3d DCA 1994), which concerns the appropriate scope of discovery necessary to impeach the testimony of an opponent's expert medical witness. In Syken, two unrelated personal injury actions were consolidated by the district court for review. ¹ In both actions, the trial judges issued orders directing defendants' expert witnesses, who were physicians, to produce tax records, income tax returns, and information regarding patients who were examined for purposes of litigation in unrelated actions. In a unanimous en banc decision, the district court reversed these orders, finding that the requested information was overly burdensome and provided little useful information. The district court then set forth specific criteria to assist trial judges in addressing this expanding problem. By separate order, the district court of appeal certified that its decision conflicted with the district court decisions in Abdel-Fattah v. Taub, 617 So.2d 429 (Fla. 4th DCA 1993) (non-party expert required to compile information regarding defense-required examinations for past year), Bissell Bros., Inc. v. Fares, 611 So.2d 620 (Fla. 2d DCA 1993) (IRS Form 1099's subject to discovery), and Young v. Santos, 611 So.2d 586 (Fla. 4th DCA 1993) (tax returns and independent medical examinations (IMEs) discoverable). ² For the reasons expressed, we approve the well-reasoned decision of the district court, and we adopt in full the district court's criteria governing the discovery of financial information from expert witnesses. We also direct that the criteria be made part of the commentary to Florida Rule of Civil Procedure 1.280.

At the outset, it is important to recognize that the issues in this case affect plaintiffs and defendants equally. For instance, in the two instant cases, it was plaintiff's counsel who sought substantial personal financial information from the medical expert witnesses for the defense. On the other hand, in Wood v. Tallahassee Memorial Regional Medical Center, Inc., 593 So.2d 1140 (Fla. 1st DCA 1992), review denied, 599 So.2d 1281 (Fla.1992), it was defense counsel who sought similar financial information from the plaintiff's expert medical witness. Thus, our decision today will provide protection to experts for both plaintiffs and defendants by preventing the unnecessary and overly burdensome disclosure of personal financial information and by possibly forestalling any chilling effect on the availability of expert witnesses. With this purpose in mind, we turn to the facts of the instant consolidated cases.

The facts of these cases were set forth by the district court as follows:

The Facts in Syken v. Elkins

In February 1993, by subpoena duces tecum, counsel for Max Elkins, plaintiff in an automobile personal injury action, scheduled the deposition of the records custodian/bookkeeper of defendant Elisa Syken's orthopedic expert, Dr. Richard Glatzer. The information sought required documentation of income earned by the expert from independent medical examinations (IMEs) since January 1, 1990; the percentage of IME income relative to private patient income since January 1, 1990; the numbers of IME exams performed for insurance carriers and for defense attorneys since January 1, 1990; disclosure of the amount charged for IMEs, and review of the expert's medical records for the past twelve months; the number of impairment ratings given since January 1, 1990; and the number of court appearances and attorney conferences and relative charges since January 1990.

Defendant's counsel filed an objection and motion for protective order. The trial judge denied the motion and required the expert to set forth the cost of producing the above information. The initial affidavit of Dr. Glatzer was filed February 12, 1993. Thereafter, Elkins filed a motion to require Dr. Glatzer's bookkeeper to comply with the subpoena, and filed a response to the affidavit. In response to Elkins' motion, the trial court ordered Dr. Glatzer to appear for an evidentiary hearing. Prior to that hearing, on May 6, 1993, the record reveals that the doctor submitted a notarized affidavit stating, in part:

5. Finally, at the request of defense counsel, I have examined my calendar for last week and this week in order to come to a reasonable approximation of the number of IME's I do in a year. Last week, I worked 4 days and saw 56 patients, of which only 3 were for the purpose of performing IME's. This week I am working only 2 days, but I am seeing 36 patients, of which 6 are for the purpose of performing IME's. Presently, I work 4 days per week. Extrapolating this information, I believe it is reasonable to conclude that I see, on average 15.33 patients per day, of which 1.5 patients are seen for performing IME's. I work approximately 48 weeks per year. As such, I believe it is reasonable to estimate that I see 2944 patients per year, of which 288 are seen for IME's. My average charge for an IME, including performing and reviewing x-rays is $500. As such a reasonable estimate of my P.A.'s income from IME's is $144,000 per year. Additionally, I attend court approximately 10-12 times per year at a rate of $500 per hour and I give approximately 5-10 depositions per year at a rate of $450 per hour.

[At a hearing before the trial court], Dr. Glatzer was questioned by the trial judge and Elkins' attorney. Two interested attorneys, involved in similar discovery pursuits on separate personal injury cases, were allowed to assist. Dr. Glatzer was asked about the contents of his affidavit in the present case as well as a second similar affidavit.

Dr. Glatzer explained that his patient files are kept alphabetically and not chronologically and that the estimated 15,000 patient files covered 25 years of practice in Dade County. The doctor expressed concern that compliance with the subpoena would require him to close his medical practice, due to the fact that his office personnel could not perform the task of gathering the requested materials during regular working hours in light of their duties in running his medical practice. Further, the doctor claimed that 1099 forms are not probative of medical legal charges because they do not differentiate between such charges and private patient charges. At the conclusion of the hearing, the trial judge issued the three orders appealed herein, in sum requiring the compilation of reports from the doctor's files, the implementation of new procedures for recording IME's and creation of new documents evidencing time spent on IME's, and production of 1099 tax forms for the last three years.

The Facts in Plaza v. Roth

Michael Roth, plaintiff below, alleged he was injured when the ceiling in his apartment fell on him. Roth sued Plaza of the Americas Part IV Condominium Association, Inc. (Plaza), the association which owns the building's common areas. Plaza hired Ledford Gregory, M.D. to conduct an IME of Roth. Thereafter, through interrogatories, Roth requested the identity of every person Dr. Gregory had examined at the request of Plaza's counsel. Plaza objected, and Roth moved to compel a response. The trial judge ordered Plaza to procure from Dr. Gregory an affidavit identifying every person examined by Dr. Gregory, or about whom Dr. Gregory had testified, pursuant to an authorization from Plaza's law firm. Subsequently, Roth issued a subpoena duces tecum to Dr. Gregory requesting, among other things, copies of

all bills issued by [Dr. Gregory] as a defense expert examiner to any insurance company or law firm during a certain period; and

all journals, ledgers, and 1099 forms pertaining to payments received by [Dr. Gregory] during a certain period, for examinations performed at the request of any insurance company or law firm.

Plaza objected to the request. The trial judge denied the objection.

In response to the subpoena, Dr. Gregory filed his affidavit, which stated that his office did not segregate files according to whether the patient was seen for an IME, and that his office maintains no central file or computer program from which the requested information could readily be retrieved. According to the affidavit, all the doctor's office files would have to be reviewed in order to determine which patients were given IMEs, and which patients were referred by Plaza's law firm, requiring "great amounts of money and time." He also stated in the affidavit that he did not keep his Internal Revenue Service 1099 forms. Roth filed a motion for contempt or sanctions.

After a hearing, the trial judge issued the order, reproduced in part below, from which Dr. Gregory seeks review.

A. Dr. Ledford Gregory is to sign a release for 1099 forms which is to be furnished by the Plaintiff and that will be sent to the IRS. Further, Ledford Gregory, M.D., P.A., shall produce its federal income tax returns for the years 1990, 1991 and 1992, to counsel fo...