In the action below, Respondent filed a complaint against the defendant for alleged injuries he suffered in a bicycle accident. Respondent served a proposed subpoena duces tecum on Petitioner, the business entity under which the doctor who performed the compulsory medical exam runs his practice.
Petitioner objected to the discovery requests and moved for a protective order. At the hearing, Petitioner conceded that Respondent was entitled to some discovery pursuant to Allstate Insurance Co. v. Boecher , 733 So. 2d 993 (Fla. 1999). However, Petitioner contended that most of what Respondent sought was not proper discovery from the examining doctor, who was an expert under rule 1.280(b)(5)(A)(iii). Petitioner argued, therefore, that Respondent could not circumvent the rule by requesting the otherwise impermissible discovery from the non-party corporate entity affiliated with the examining doctor.
Respondent argued that the limits of Elkins and rule 1.280(b)(5) do not apply to Petitioner because it is a corporation, and it is not afforded the protections of an expert. Respondent argued that the defense expert, along with several other doctors, are officers, directors, and partners of Petitioner. Respondent asserted that five out of nine of the doctors, who are owners of Petitioner, perform compulsory medical examinations for the defense. Respondents contended that the partners share in the revenue and profits, and that could point to financial bias and incentive for the defense expert to accept a certain type of case. Respondent also pointed out that it learned through a deposition that the defense firm had hired Petitioner 120 times in three years, showing that Petitioner had made hundreds of thousands of dollars from this type of work.
The trial court sustained some objections and overruled others. The trial court did not address Petitioner's objections that the discovery exceeded rule 1.280(b)(5), or that such discovery requests were burdensome and invasive on a non-party. The trial court did not make findings of "unusual or compelling circumstances," but it compelled the discovery. See Fla. R. Civ. P. 1.280(b)(5)(A). The trial court ordered that Petitioner's representative must bring to the deposition "for reference purposes only" documents responsive to Respondent's requests 1, 2, 6, 8-12, and 15. These paragraphs requested documents pertaining to the following:
1. Voire Dire of the Designated Witness(es): Does the witness maintain a curriculum vitae or resume? Please provide a brief description of your biographical background, including your employment history and educational history. Please describe your relationship with the Practice[ ] and the provenance of your designation as its witness for the relevant subject matters. Please describe all steps you have taken to prepare for your testimony on those subjects matters for which you have been designated, including, where appropriate, persons interviewed and documents reviewed. Have you prepared any notes, written summaries, or document collections to assist you in making your testimony accurate and complete? Have you brought those with you today? During your testimony, will you refer to any such notes, written summaries, or document collections when necessary to ensure your testimony is accurate and complete?
2. Overview and Ownership. Describe the medical Practice's business model and primary business activities. Does the medical Practice have any signed contracts with the Defendant, Defendant's Insurance Company, or Defendant's Law Firm[?] Provide the names and identities of all persons or entities who hold or have held a direct or indirect ownership interest in your Practice. Describe how the owners share and divide in the Practice[']s profits, revenues, and expenses. Does the medical Practice track the amount of business generated by each doctor within the Practice? If yes, how so? Does the doctor that brings in or obtains the patient or medical exam receive a larger share of the revenue generated by that examination? Do the other doctors within the Practice also share in the revenue generated by the doctor that brought in the patient or exam to a lesser degree?
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6. Revenues. The percentage of your revenue that is generated from providing medical services in the last three full years. Please be prepared to specific [sic] the percentage of revenue derived from (1) Defense Compulsory Medical Exams (DCME); (2) PIP Independent Medical Exams (PIP IME); (3) Worker's Compensation Claims; (4) Fees for Depositions on behalf of Defendants; (5) Trial Testimony on behalf of Defendants; (6) Letters of Protection; (7) Health Insurance; (8) PIP; (9) Consulting Work. Please be prepared to provide the revenue percentage or split for your treatment of patients that actually choose your Practice versus patients that were referred to your Practice for treatment or medical evaluations by employers, insurance companies, defense law firms or their servicing agents.
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8. Letters of Protection (LOP). Has your Practice accepted LOPs? Under what circumstances does or has your Practice accept[ed] LOPs? How many LOPs have you accepted in each year? Does accepting an LOP in anyway change your doctor's care and treatment of a patient? Whether the Practice has ever accepted less than full face value of a medical bill generated under LOP, and if so, the average percentage discount you have accepted.
9. DCMEs. Does your Practice perform DCME? Identify each doctor within your Practice that performs DCME. Who makes the decision in choosing your doctors to perform the DCME? Who are you hired by to perform the DCME? Provide the total number of DCMEs performed by all the doctors in your Practice. Please be able to further specify how many DCMEs were performed by each doctor within your Practice for each year. Please identify each insurance company that [has] paid you for performing these DCMEs for each year and the number of times per year. Please identify each defense law firm that you [sic] enlisted your services in performing DCME for each year and the number of times per year.
10. PIP IMEs. Does your Practice perform PIP IMEs? Identify each doctor within your Practice that performs PIP IMEs. Who chooses your doctors to perform the PIP IMEs? Who are you hired by to perform the PIP IMEs?
Does the injured party choose your doctor? Provide the total number of PIP IMEs performed by all the doctors in your Practice for each year. Please be able to further specify how many PIP IMEs were performed by each doctor within your Practice for each year. Please identify each insurance company that [has] paid you for performing these PIP IMEs for each year and the number of times per year. Please identify each defense law firm that you [sic] enlisted your services in performing PIP IMEs for each year and the number of times per year.
11. Worker's Compensation. Does your Practice accept worker's compensation cases? How does your practice obtain worker's compensation cases? Identify the doctors in your Practice that provide worker's compensation medical care and treatment to injured employee/patient. Does the injured employee/patient get to choose your Practice or doctors as their initial choice doctor? Does the employer, worker's compensation insurance company, or servicing agent get to choose your Practice as the injured employee's initial choice of doctor? How many injured employees/patients worker's compensation cases does your Practice obtain each year as the initial treating physician? Does your Practice perform IMEs for employers, worker's compensation insurance companies, or their servicing agents? If so, how many IMEs does your Practice perform each year for the employer, worker's compensation insurance carrier, and servicing agent? Specify how many IMEs each doctor performs per year for the employer, worker's compensation insurance carrier, and servicing agent. Does you[r] Practice perform IMEs for injured Employees/Claimants? If so, how many IMEs does your Practice perform each year for injured Employees/Claimants?
12. Consulting. Provide the total number of times you have performed consulting work on behalf of any defendants, insurance companies, and defense law firms. Please be able to further specify how many were performed by each doctor in the Practice for each year.
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15. Marketing and Advertising. Does your Practice market or advertise its services? If so, what services does it market or advertise? How does your Practice
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