Syken v. Elkins, s. 93-1299
| Citation | 644 So.2d 539 |
| Decision Date | 05 October 1994 |
| Docket Number | Nos. 93-1299,93-2317,s. 93-1299 |
| Parties | 19 Fla. L. Weekly D2109 Elisa SYKEN, Petitioner, v. Max ELKINS, et al., Respondents. PLAZA OF the AMERICAS PART IV CONDOMINIUM ASSOCIATION, INC., and Ledford Gregory, M.D., Petitioners, v. Michael ROTH, Respondent. |
| Court | Court of Appeal of Florida (US) |
Clark, Sparkman, Robb & Nelson, and James T. Sparkman, Fort Lauderdale, for petitioner Syken.
Robbins & Reynolds and Robert A. Robbins, and Barbara Green, Miami, for respondents Elkins, et al.
Fleming, O'Bryan & Fleming, and Paul R. Regensdorf, Fort Lauderdale, for Florida Defense Lawyers Ass'n, as amicus curiae.
Roy D. Wasson, Miami, for Academy of Florida Trial Lawyers, as amicus curiae.
Adorno & Zeder and Raoul G. Cantero III and David Lawrence III, Miami, for petitioners Plaza of the Americas Part IV Condominium Ass'n, Inc. and Ledford Gregory, M.D.
Friend & Fleck and Richard A. Friend, South Miami, for respondent Roth.
Before SCHWARTZ, C.J., and BARKDULL, HUBBART, NESBITT, BASKIN, JORGENSON, COPE, LEVY, GERSTEN, GODERICH and GREEN, * JJ.
EN BANC
We entertain these petitions for common law certiorari, en banc, in order to harmonize the divergent opinions of this court involving the scope of discovery reasonably necessary to impeach the testimony of an opponent's expert medical witness. We have jurisdiction. Fla.R.App.P. 9.331.
In Syken v. Elkins, case 93-1299, petitioner, defendant below, seeks, through rehearing en banc, this court's review (by common law certiorari) of three trial court orders which require that defendant's expert witness physician: 1) produce material ordered in earlier cases by other trial judges; 2) begin keeping certain new records to be made available to plaintiff's counsel; and 3) produce certain financial data, including federal income tax 1099 forms. In Plaza v. Roth, case 93-2317, the petitioner, defendant below, and its expert witness physician, seek review of an order that the expert produce certain 1099's and P.A. federal income tax returns. For the reasons stated below, we grant the petitions and quash the orders under review.
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.
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. 1
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 for the plaintiff. Dr. Gregory is to produce the documents within ten (10) days from the date of this hearing.
The issue in these cases is whether the trial courts' orders depart from the essential requirements of law, and will cause material injury to petitioners for which they have no adequate remedy by appeal. Abdel-Fattah v. Taub, 617 So.2d 429, 430 (Fla. 4th DCA 1993).
Litigants attempting to demonstrate the bias of an expert witness physician have commonly asserted that they are entitled to discovery of basically two types. First, as in Syken, litigants have sought direct access to the doctor's office files in order to conduct some sort of "audit" so as to obtain an exact count of the number of IMEs the doctor performs each year, and then to compare that number with the total number of patients seen. Second, as in both Syken and Plaza, litigants have attempted to obtain access to the doctor's financial information so as to come up with exact income figures which can be presented to the jury.
Florida Rule of Civil Procedure 1.280 allows for discovery of any matter, not privileged, that is relevant to the subject matter of the action. The scope of this rule, while recognized as being broad, Argonaut Ins. Co. v. Peralta, 358 So.2d 232 (Fla. 3d DCA), cert. denied, 364 So.2d 889 (Fla.1978), is not without limitation. First, as the rule indicates, irrelevant and privileged matter is not subject to discovery. Fla.R.Civ.P. 1.280(b)(1). Second, the discovery of relevant, non-privileged information may be limited or prohibited in order to prevent annoyance, embarrassment, oppression or...
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