       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

             ORTHOPEDIC CENTER OF SOUTH FLORIDA,
                          Petitioner,

                                     v.

                             MICHAEL SODE,
                               Respondent.

                              No. 4D18-3478

                              [June 12, 2019]

  Petition for writ of certiorari to the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Raag Singhal, Judge; L.T. Case No.
CACE-17-011371.

   Richard A. Jarolem of Traub Lieberman Straus & Shrewsberry, LLP,
Palm Beach Gardens, for petitioner.

  Andrew A. Harris of Burlington & Rockenbach, P.A., West Palm Beach,
and Thomas H. Leeder of Leeder Law, Plantation, for respondent.

CONNER, J.

   In this case, we address a matter of first impression: the extent to which
the financial discovery limitations applicable to an expert apply to the
business entity with which the expert is affiliated. Orthopedic Center of
South Florida (“Petitioner”), a non-party in the action below, petitions for
a writ of certiorari, seeking to quash a discovery order overruling its
objections to a proposed subpoena duces tecum. The proposed subpoena
was served on Petitioner by Michael Sode (“Respondent”). Petitioner
contends the order compelling it to produce certain documents for
“reference purposes only” at deposition is beyond the scope of permissible
discovery under Florida Rule of Civil Procedure 1.280(b)(5) and Elkins v.
Syken, 672 So. 2d 517 (Fla. 1996). We grant the petitition because we
conclude that: (1) the protections from invasive discovery afforded to
individual experts apply equally to the business entity with which the
expert is affiliated; (2) Respondent used an improper discovery
methodology; and (3) the order grants impermissible discovery.
                               Background

    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?


                                     2
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?

....


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

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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.

....


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


                              4
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.

....




                               5
      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 market or
      advertise? Does it use any online services or websites? If
      so, identify each online service or website that the Practice
      uses? What specific services does the Practice market or
      advertise using the online services or websites?

                              Certiorari Analysis

    Certiorari review is discretionary. Grabel v. Sterrett, 163 So. 3d 704,
706 (Fla. 4th DCA 2015). Before relief may be granted, the petition must
establish a departure from the essential requirements of law, resulting in
material injury that cannot be corrected on post-judgment appeal. Id.
“Certiorari jurisdiction does not lie to review every erroneous discovery
order.” Katzman v. Rediron Fabrication, Inc., 76 So. 3d 1060, 1062 (Fla.
4th DCA 2011) (citing Allstate Ins. Co. v. Langston, 655 So. 2d 91, 94 (Fla.
1995)). As such, appellate courts generally do “not review orders denying
a party’s over-breadth or burdensome[] objections to discovery.” Id.
However, disclosure of otherwise private financial information can result
in irreparable harm if a petitioner affirmatively establishes the discovery
is irrelevant to any issue in the litigation. Id.

    Respondents contend that because the discovery order is not the
subject of a “clearly established principle,” certiorari relief is not available,
and Petitioner will have to wait for a resolution when and if a plenary
appeal is brought. However, “Petitioner is a non-party, [and] to the extent
the order compels production of cat-out-of-the-bag information, certiorari
jurisdiction lies.” Grabel, 163 So. 3d at 706.

   We grant certiorari relief because we conclude that the protections from
invasive discovery afforded to individual experts apply equally to the
business entity with which the expert is affiliated. That being the case, we
determine that certiorari relief should be granted for two additional
reasons: (1) Respondent used an inappropriate methodology for discovery;
and (2) the proposed subpoena duces tecum seeks unauthorized
information. We explain our reasoning.

Protections Afforded to Individual Experts Apply to Business Entities

   In Elkins, our 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 requests. 672 So. 2d at 522. In striking that

                                       6
balance, the supreme court adopted rule 1.280(b)(5), which limits
discovery from experts who are obviously hired by one party. See Worley
v. Cent. Fla. Young Men’s Christian Ass’n, 228 So. 3d 18, 22-23 (Fla. 2017)
(discussing reasons for adopting rule 1.280(b)(5)(A)(iii)). The limitations
were deemed necessary to prevent overly intrusive and harassing financial
discovery which “serves only to emphasize in unnecessary detail that
which would be apparent to the jury on the simplest cross-examination:
that certain doctors are consistently chosen by a particular side in
personal injury cases to testify on its respective behalf.” Elkins, 672 So.
2d at 521 (approving and quoting Syken v. Elkins, 644 So. 2d 539, 545
(Fla. 3d DCA 1994)). The Elkins court further explained:

      Discovery was never intended to be used as a tactical tool to
      harass an adversary in a manner that actually chills the
      availability of information by non-party witnesses; nor was it
      intended to make the discovery process so expensive that it
      could effectively deny access to information and witnesses or
      force parties to resolve their disputes unjustly. To allow
      discovery that is overly burdensome and that harasses,
      embarrasses, and annoys one’s adversary would lead to a lack
      of public confidence in the credibility of the civil court process.
      The right to a jury trial in the constitution means nothing if
      the public has no faith in the process and if the cost and
      expense are so great that access is basically denied to all but
      the few who can afford it. In essence, an overly burdensome,
      expensive discovery process will cause many qualified experts,
      including those who testify only on an occasional basis, to
      refrain from participating in the process, particularly if they
      have the perception that the process could invade their
      personal privacy.

Id. at 522.

   Rule 1.280(b)(5) specifically provides:

      (5) Trial Preparation: Experts. Discovery of facts known and
      opinions held by experts, otherwise discoverable under the
      provisions of subdivision (b)(1) of this rule and acquired or
      developed in anticipation of litigation or for trial, may be
      obtained only as follows:

      ....



                                      7
      (A)(iii) A party may obtain the following discovery regarding
      any person disclosed by interrogatories or otherwise as a
      person expected to be called as an expert witness at trial:

         1. The scope of employment in the pending case and
         the compensation for such service.

         2. The expert’s general litigation experience, including
         the percentage of work performed for plaintiffs and
         defendants.

         3. The identity of other cases, within a reasonable time
         period, in which the expert has testified by deposition
         or at trial.

         4. An approximation of the portion of the expert’s
         involvement as an expert witness, which may be based
         on the number of hours, percentage of hours, or
         percentage of earned income derived from serving as an
         expert witness; however, the expert shall not be
         required to disclose his or her earnings as an expert
         witness or income derived from other services.

      An expert may be required to produce financial and business
      records only under the most unusual or compelling
      circumstances and may not be compelled to compile or produce
      nonexistent documents. Upon motion, the court may order
      further discovery by other means, subject to such restrictions
      as to scope and other provisions pursuant to subdivision
      (b)(5)(C) of this rule concerning fees and expenses as the court
      may deem appropriate.

Id. (emphases added).

   We conclude that the protections afforded to an expert under rule
1.280(b)(5)(A)(iii) and Elkins should extend to Petitioner, the non-party
corporate entity with which the expert is affiliated. To hold otherwise
would render Elkins and Rule 1.280 meaningless and create the same
“chilling effect” from which Elkins sought to protect experts.

Improper Methodology

   We begin with the observation that the notice of proposed subpoena
duces tecum under review is unusual in its methodology. Specifically, it

                                     8
more accurately appears to be a document asking questions or requesting
descriptions, rather than listing types of documents sought. According to
the petition, Respondent served Petitioner with a proposed subpoena
duces tecum in conjunction with the oral deposition of a corporate
representative on a date to be determined in the future. We further note
that the order granting discovery directs that Petitioner’s representative
must bring to the deposition, “for reference purposes only,” documents
responsive to Respondent’s requests. Thus, we assume the trial court
construed the proposed subpoena duces tecum to be a discovery vehicle
in which Respondent put Petitioner on notice of the questions Respondent
would be asking during deposition, with the expectation that the deponent
would bring documents to the deposition that would verify the answers to
the questions.

    The use of a proposed subpoena duces tecum for the production of
documents for use at deposition is authorized under Florida Rule of Civil
Procedure 1.310(b)(1). Fla. R. Civ. P. 1.310(b)(1) (“If a subpoena duces
tecum is to be served on the person to be examined, the designation of the
materials to be produced under the subpoena must be attached to or
included in the notice [of taking deposition].”). We note that Florida Rule
of Civil Procedure 1.351 addresses production of documents without
deposition from non-parties. See Fla. R. Civ. P. 1.351(a). The procedure
under rule 1.351 provides that advance notice of the request for
production is accomplished by attaching to the notice a copy of the
subpoena proposed to be served which, among other things, “shall include
a designation of the items to be produced[.]” Fla. R. Civ. P. 1.351(b). We
do not agree that the language of the rules requiring “the designation of
the materials to be produced under the subpoena,” Fla. R. Civ. P.
1.310(b)(1), or “a designation of the items to be produced” without
deposition, Fla. R. Civ. P. 1.351(b), allows for a subpoena that asks
questions or requests descriptions, rather than list the types of documents
sought. Respondent has cited no caselaw for such an interpretation. Such
an interpretation is fraught with problems, not the least of which would
be the onslaught of motions addressing objections or compliance issues,
revolving around interpreting the actual information sought by
propounding a question.

Subpoena Duces Tecum Seeks Unauthorized Information

    As stated above, the protections afforded to an expert under rule
1.280(b)(5)(A)(iii) and Elkins should extend to Petitioner. Accordingly, to
the same extent such information could be obtained from an expert, we
conclude it is proper to seek the production of documents from a business
entity non-party with whom an expert is affiliated that could establish bias

                                     9
on the part of the expert. Therefore, except as to paragraphs 1 and 15 of
the proposed subpoena, we conclude that the trial court went well beyond
the limits of rule 1.280(b)(5) and Elkins. The contested order permits
excessive discovery, with no finding of unusual or compelling
circumstances. For example, the request under paragraph 2 (“Overview
and Ownership”) quoted above, seeks the following information:

      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?

Such a request is not authorized under rule 1.280(b)(5)(A)(iii) or Elkins.
We reject Respondent’s argument that proof that the defense law firm hired
Petitioner, a business entity with nine doctors, for 120 cases in three years
supports an “unusual or compelling circumstance” for the requested
information.

   Finally, to the extent this case presents a novel issue, we note Judge
May’s specially concurring opinion in Coopersmith v. Perrine, 91 So. 3d
246 (Fla. 4th DCA 2012):

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



                                     10
Id. at 248 (May, C.J., specially concurring). We caution trial counsel from
employing, and trial courts from approving, novel discovery methods
which exceed the limits of authorized discovery.

   Petition granted.

DAMOORGIAN and LEVINE, JJ., concur.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




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