By Esther E. Galicia
The Fourth District adheres to Rule 1.280(b)(5)’s discovery limitations with regard to a witness’s earnings as an expert witness or income derived from other services in the absence of “the most unusual or compelling circumstance.”
The Fourth District in Grabel v. Sterrett, --- So. 3d ----, 2015 WL 1934558 (Fla. 4th DCA Apr. 29, 2015), recently quashed an order compelling the defendant’s non-party medical expert, neurosurgeon Dr. Jordan Grabel, to produce documents at his deposition containing the doctor’s private financial information as an expert witness. Dr. Grabel was retained by the defendant’s insurer, State Farm, to conduct a compulsory medical examination of the plaintiff. Plaintiff sought the requested financial information to establish the doctor’s potential bias.
Dr. Grabel admitted that 99 percent of his litigation work is on behalf of the defense. He also acknowledged that he had testified for the defense on 57 occasions related to examinations since 2006. Dr. Grabel appeared at his deposition and provided the information required by Florida Rule of Civil Procedure 1.280(b)(5).
In holding that the trial court’s order departed from the essential requirements of law, the Grabelcourt reasoned: “Without making any finding of ‘the most unusual or compelling circumstances’ that might justify the production of financial or business records, the trial court ordered the doctor to produce financial and business records beyond that allowed by [Rule 1.280(b)(5)].” Id. at *2.
The Fourth District also stated that “plaintiff has obtained, or can obtain, records regarding payments from the insurer to the doctor, pursuant to Allstate Insurance Co. v. Boecher, 733 So. 2d 993 (Fla. 1999). This is more than sufficient information to reveal any potential bias.” Id. at *3.