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Plaintiff Discovery Tactics in Florida: Is There Any Limit?

Author: Doug Baier

Guest Editor: Chandra Roam

August 7, 2019 10:00am

A look at Orthopedic Center of South Florida v. Sode So.3d (2019)

In Orthopedic Center of South Florida v. Sode So.3d (Fla. 4th DCA 2019), a bicyclist sued to recover for injuries sustained in a bicycle accident. As part of the suit, plaintiff served a subpoena duces tecum on a non-party corporate entity with which the physician, who performed a compulsory medical exam, was affiliated. The non-party healthcare provider filed objections to the subpoena duces tecum as plaintiff sought financial discovery. The non-party further contended the lower court’s ruling compelling it to produce certain documents for “reference purposes only” at deposition was beyond the permissible discovery under Florida Rules of Civil Procedure 1.280(b)(5).[1]

Plaintiff unsuccessfully argued the health care provider was not afforded the protections of an expert because it was a corporation. Plaintiff further argued the partners of the corporation share in the revenue and profits and, therefore, plaintiff could point to a financial bias and incentive for defense experts to accept a certain type of case.[2] Finally, the plaintiff argued the defense firm on the case had hired the health care corporation 120 times in three years and had made hundreds of thousands of dollars from this type of work.

In Elkins, the Florida Supreme Court recognized the necessity of striking a balance between a party’s need for information to demonstrate a medical expert’s potential bias, with the expert’s right to be free from burdensome and intrusive discovery request.[3] In striking that balance, the Florida Supreme Court limited discovery from experts who are hired by one party.[4] The limits were deemed necessary to prevent overly intrusive and harassing financial discovery, which serves only to emphasize in unnecessary detail, which would be apparent to the jury on the simplest cross-examination, that certain doctors are consistently chosen by a particular side in person injury cases.[5]

The Sode court held that protections afforded to an expert under rule 1.280(b)(5)(A)(iii) and Elkins should extend to Petitioner.[6] The court also pointed to Coopersmith v. Perrine, 91 So. 3d 246 (Fla. 4th DCA 2012) which stated:

In an effort to discredit medical witnesses for the other side, attorneys for both plaintiffs and defendants are exceeding the bounds of the rules of civil procedure, confidentiality laws, and professionalism by engaging in irrelevant, immaterial, burdensome, and harassing discovery. Parameters have already been expanded to allow both sides to explore financial interests of medical witnesses and the volume of referrals to those witnesses.[7]  And now, attempts to expand the scope of that discovery to treating physicians as well as retained experts are usurping the limited resources of our trial courts. This not only creates unnecessary burdens on our over-strained justice system, it further taints the public’s view of our profession.

Takeaway

This case shows how plaintiffs may attempt to circumvent previously decided Florida law. However, to protections against burdensome and instructive financial discovery requests which are provided to experts are also extended to non-party corporate entities in which an expert is affiliated.

 

[1] Orthopedic Center of South Florida v. Sode So.3d (Fla 4th DCA 2019); See also Elkins v. Syken, 672 So. 2D 517 (Fla. 1996).

[2] Orthopedic Center of South Florida v. Sode So.3d (Fla 4th DCA 2019)

[3] Elkins v. Syken, 672 So. 2D 517, 522 (Fla. 1996).

[4] See Florida Rule of Civil Procedure 1.280.

[5] Elkins v. Syken, 672 So. 2D 517, 521 (Fla. 1996).

[6] [6] Orthopedic Center of South Florida v. Sode So.3d (Fla 4th DCA 2019)

[7] See Elkins v. Syken, 672 So. 2d 517 (Fla. 1996)

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