# Third District Court of Appeal

State of Florida

Opinion filed November 26, 2014.

Not final until disposition of timely filed motion for rehearing.

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No. 3D14-988

Lower Tribunal No. 12-31867

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### Orthopedic Care Center

, Appellant,

vs.



### Devon Parks, et al.

, Appellees.

An Appeal from the Circuit Court for Miami-Dade County, Lisa S. Walsh

, Judge.

Fuerst Itleman David and Joseph and Christopher M. David; Kula &

Samson and Elliott Kula, W. Aaron Daniel and Daniel M. Samson, for appellant.

Gordon & Doner and Cassandra Castellano-Lombard and Gary M. Paige

(Davie); Burlington & Rockenbach and Adam J. Richardson (West Palm Beach),

for appellees.

Before WELLS, EMAS and LOGUE, JJ.

EMAS, J.Appellant Orthopedic Care Center (“Orthopedic”), appeals an order denying

its motion for protective order. For the reasons that follow, we affirm the trial

court’s order.

FACTS

Appellee Devon Parks (“Parks”) filed a personal injury action against Edna

Gutierrez (“Gutierrez”) in August 2012, alleging that Gutierrez was negligent and

caused a car accident between the two, resulting in injuries to Park. Gutierrez

hired Dr. Rolando Garcia, a physician with Orthopedic (and also a shareholder and

member of Orthopedic), to conduct a compulsory medical examination of Parks.

Thereafter, Parks noticed the deposition duces tecum of Dr. Garcia for

March 7, 2014. In items 16 and 17 of the schedule attached to the notice, Parks

asked Dr. Garcia to bring to the deposition:

16. Any and all records which identify and document your trial

testimony and deposition testimony for cases involving worker’s

compensation and personal injury claims during the last five (5) years.

If no list of such cases is in existence and if you do not wish to create

such a list, please produce all calendars, diaries, ledgers, indexes, and

such other records or documents which you have in your possession

or have access to which reveal cases in which you have provided

testimony in deposition, arbitration, mediation, or at trial for any cases

in the last five (5) years.

17. Any and all records which identify and document any and all

CME, IME or examinations of any type which you have conducted

during the last five (5) years on behalf of insurance companies, law

firms, referral services, or other entities on their behalf. If no list of

such CME, IME or examinations are in existence and if you do not

wish to create such a list, please produce all calendars, diaries,

2ledgers, indexes and such other records or documents which you have

in your possession or have access to which review all CME, IME or

examinations of any type in which have you have conducted during

the last five years.

At his deposition, Dr. Garcia brought a list of the names of individuals in

cases in which he testified

– either at trial or by deposition

– for the immediatelypreceding three years. The list comprised approximately 205 names. Park’s

counsel asked Dr. Garcia to identify from the list those individuals for whom he

provided treatment as a patient as opposed to those for whom he performed an

IME or CME. 1 The following exchange ensued:

Q. And are these

– can you just tell me briefly what percentage is

plaintiff, what percentage is defense?

A. I can’t. I can tell you that generally speaking, I would say it’s

probably 70 percent defense, 30 percent plaintiff.

Q. In deposition or in trial?

A. Deposition and in trial.

Q. So your best recollection is that it’s 70 percent defense in

depositions; correct?

A. I would say so, yes, sir.

Q. And your best estimate is 70 percent defense in trial; correct?

A. That’s correct, yes, sir....

Q. Okay. But I’m talking about the trial testimony, your trial

testimony

– do you want to look at these in the last year and tell me if

you recognize the names of any of your patients in there?

A. No. I don’t want to give you the wrong number. I’m going to just

tell you that I cannot give you an estimate. Because I was trying to

1 IME is short for “Independent Medical Examination” and CME is short for

“Compulsory Medical Examination.”

3answer the question, but now basically, you’re asking me to be more

specific and I cannot give you a specific number....

Q. I’ll just

– the lists of the trial testimony that you just gave me, can

you just look at it and tell me if you recognize which of those people

that you recognize

– recall as being patients that you treated and had

an ongoing relationship with them as a treating physician? That’s all I

want to know....

THE WITNESS: Yeah, and I’ve mentioned several times, just by

looking at the names, I wouldn’t be able to answer that.

Dr. Garcia explained that he could not identify what names on the list were

patients he treated (versus individuals on whom he performed IME/CME exams)

just by looking at the names because “[he wouldn’t] know the extent of the

treatment of a specific patient, and in addition to that, usually the trials are

regarding patients that may have been treated in the past, so it could have been a

while.” Dr. Garcia approximated that on a weekly basis he saw approximately 100

patients and completed about five CMEs.

On March 13, 2014, following Dr. Garcia’s deposition, Park’s counsel

followed up with a subpoena for deposition (the “Subpoena”) directed to a

representative of Orthopedic 2 with the most knowledge regarding:

1. Which of the persons or cases on the lists provided by Dr. Garcia,

attached as Exhibits A & B, were actual patients (not IME exams)

of Dr. Garcia. 3

2 Orthopedic was not a party to the proceeding below.

3 The Subpoena also requested the appearance of the witness with the most

knowledge regarding: “Which of the persons or cases on the lists provided by Dr.

Garcia, attached as Exhibit A involve depositions given by Dr. Garcia in worker’s

4Thereafter Orthopedic filed its Objection and Motion for Protective Order of

Non-Party, asserting that: (i) the Subpoena imposed overly burdensome obligations

beyond the scope of Florida Rules of Civil Procedure 1.280 and 1.310, and in

violation of Florida law pursuant to Elkins v. Syken

, 672 So. 2d 517 (Fla. 1996);

and (ii) the Subpoena would require Orthopedic to violate section 456.057, Florida

Statutes (2013), which prohibits the disclosure of nonparty compulsory medical

examination data without prior notice to all of the affected nonparties.

Parks responded, arguing that (i) he was entitled to know the percentages of

work Dr. Garcia performed as a retained expert for plaintiffs and as a retained

expert for defendants, as this information went to Dr. Garcia’s potential bias; (ii)

the Subpoena did not place an undue burden or expense on Orthopedic; and (iii)

the discovery request would not result in a violation of section 456.057 because it

did not seek any information regarding the patient’s medical condition or

treatment.

After a hearing, the trial court determined that Rule 1.280(b)(5)(A)(iii) was

intended to permit discovery regarding testimony given by an expert in their

capacity as a retained expert

, and that a list which combined cases in which Dr.

Garcia gave testimony as an expert with cases in which Dr. Garcia gave testimony

compensation cases, and which were depositions given in personal injury/liability

cases.” The trial court, however, denied this request, and this issue is not before us

on appeal.

5as a treating physician did not comply with the underlying purpose of the rule.

Thus, the court found that the rule permitted Parks to discover which of the

individuals listed involved cases in which Dr. Garcia served as a retained expert

(as opposed to a treating physician). The trial court entered its order overruling

Orthopedic’s objection to item one of the Subpoena and Orthopedic appealed.

ANALYSIS

A “trial court has broad discretion in determining whether a protective order

is warranted under the circumstances.” Smith v. S. Baptist Hosp. of Fla.

, 564 So.

2d 1115, 1118 (Fla. 1 st DCA 1990). Therefore, while the court’s factual findings

will not be disturbed absent an abuse of discretion, Alvarez v. Cooper Tire &

Rubber Co.

, 75 So. 3d 789, 793 (Fla. 4 th DCA 2011), we review de novo the

court’s interpretation and application of Rule 1.280 and section 456.057, Pino v.

Bank of N.Y.

, 121 So. 3d 23, 31 (Fla. 2013)

On appeal, Orthopedic contends that Dr. Garcia complied with rule 1.280

and Elkins by:

1) Producing a list of all cases during the preceding three-year period in

which he testified either at trial or by deposition, either as a retained expert witness

or a treating physician; and

2) Explaining his general litigation experience and giving an approximation

of his work for both defendants and plaintiffs.

6Orthopedic argues that further bias-discovery

— in the absence of any

suggestion that Dr. Garcia was falsifying, misstating or obfuscating

— is

unauthorized under rule 1.280 and Elkins

. It further asserts that the ordered

discovery violates section 456.057, which protects against the disclosure of patient

information. We find neither argument persuasive.

I. Elkins and Rule 1.280

With regard to expert witness discovery, Florida Rule of Civil Procedure

1.280(b)(5)(A)(iii) provides:

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.

(Emphasis added).

In Elkins

, 672 So. 2d at 521, the Florida Supreme Court approved this

Court’s decision in Syken v. Elkins

, 644 So. 2d 539 (Fla. 3d DCA 1994), and

7adopted the district court’s established criteria governing the discovery of financial

information from expert witnesses:

1. The medical expert may be deposed either orally or by written deposition.

2. The expert may be asked as to the pending case, what he or she has been

hired to do and what the compensation is to be.

3. The expert may be asked what expert work he or she generally does

. Is

the work performed for the plaintiffs, defendants, or some percentage of

each ?

4. The expert may be asked to give an approximation of the portion of their

professional time or work devoted to service as an expert

. This can be a

fair estimate of some reasonable and truthful component of that work, such

as hours expended, or percentage of income earned from that source, or the

approximate number of IME’s that he or she performs in one year. The

expert need not answer how much money he or she earns as an expert or

how much the expert’s total annual income is.

5. The expert may be required to identify specifically each case in which he or

she has actually testified, whether by deposition or at trial

, going back a

reasonable period of time, which is normally three years. A longer period of

time may be inquired into under some circumstances.

6. The production of the expert’s business records, files, and 1099’s may be

ordered produced only upon the most unusual or compelling circumstance.

7. The patient’s privacy must be observed.

8. An expert may not be compelled to compile or produce nonexistent

documents.

Id. at 546 (emphasis added). 4

Importantly, the Florida Supreme Court found “that the district court’s

opinion strikes a reasonable balance between a party’s need for information

4 The court also directed that these criteria be made part of the commentary to

Florida Rule of Civil Procedure 1.280.

8covering an expert witness’s potential bias and the witness’s right to be free from

burdensome and intrusive production requests.” Elkins

, 672 So. 2d at 522.

Thus, both Elkins and rule 1.280 focus on the discovery to be provided by

“the expert,” and require “the expert” to specifically identify those cases in which

he has testified by deposition or trial. It logically follows from this that a party is

entitled to discover those cases in which the expert testified as an expert

. In fact,

the third and fourth criteria identified in Elkins (and the second and fourth criteria

set forth in the rule) expressly contemplate such discovery. Though Dr. Garcia

provided an expansive list of persons or cases in which he testified by deposition

or trial, covering testimony provided both as a retained expert and as a treating

physician, he was unable to differentiate those cases in which he testified “as an

expert” from those cases in which he testified as a treating physician. Such a

distinction is relevant and could prove significant in assessing potential bias.

Dr. Garcia initially testified at his deposition that of the list of 205 cases in

which he testified or gave a deposition, approximately 70% were on behalf of the

defense and 30% were on behalf of the plaintiff. Later in the deposition, however,

when asked to identify only those cases in which he gave testimony as an expert

witness (rather than testimony given as a treating physician), Dr. Garcia was

unable to do so, eventually disclaiming the original estimated percentages of

plaintiff and defense work. As a result, the trial court determined that the Parks

9was entitled to depose the person from Orthopedic with the most knowledge to

identify which names or cases on the list involved Dr. Garcia’s testimony as an

expert witness (as opposed to testimony as a treating physician). We find no

abuse of discretion in the trial court’s factual determinations in this regard. We

also conclude that the trial court correctly applied rule 1.280 and the underlying

purpose of the rule in light of the factual circumstances presented.

As this court has previously recognized, “Florida case law and Florida Rule

of Civil Procedure 1.280

. . . provide ‘reasonable latitude for inquiry about the

extent of a trial expert’s alignment with one side, or another.’” Sanchez v. Nerys

,

954 So. 2d 630, 631 (Fla. 3d DCA 2007). We do not find an abuse of discretion in

the trial court’s decision to deny Orthopedic’s motion for protective order where

Parks’ discovery requests sought nothing more than a differentiation between Dr.

Garcia’s relevant work “as an expert” and his other work as a treating physician. 5

Given Dr. Garcia’s inability to differentiate the names on the list (retained

expert testimony v. treating physician testimony), it might well be inaccurate for

5 This is not to suggest that an expert’s work as a treating physician could never be

relevant or discoverable. For example, where the expert is considered a “plaintiff’s

expert” the defense might properly seek discovery regarding the number and

percentage of cases in which the plaintiff’s attorney refers a client to the expert for

purposes of medical treatment. See e.g.

, Steinger, Iscoe & Greene, P.A. v. Geico

Gen. Ins. Co.

, 103 So. 3d 200 (Fla. 4th DCA 2012). We also do not ignore the fact

that a plaintiff’s treating physician may often be characterized as a “hybrid” expert,

in that such a witness may be providing testimony on the plaintiff’s medical history

and course of treatment, while also offering opinions regarding future medical

treatment and permanency.

10Dr. Garcia to be permitted to maintain, and to require Parks to accept, the

equivocal and undifferentiated estimates provided by during Dr. Garcia’s

deposition. A single hypothetical should clarify this point:

Assume that the list provided by Dr. Garcia contained a total of 200 cases

(for ease of calculation) in which Dr. Garcia provided testimony either as a

retained expert witness or as a treating physician.

Assume that in 30 percent of those cases (60 cases) Dr. Garcia provided

testimony for the plaintiff, either as a retained plaintiff’s expert or as a treating

physician. The remaining 70 percent (140) would represent cases in which Dr.

Garcia testified as a retained defense expert. One could conceivably argue that

these percentages (70 percent defense, 30 percent plaintiff) reveal some potential

bias or alignment as an expert witness.

Assume that when the list is differentiated (i.e., broken down to distinguish

between testimony given as a retained plaintiff’s expert versus testimony given as

a treating physician) it is determined that of the 30 percent (60 cases) in which Dr.

Garcia provided testimony “for the plaintiff,” every single one of those 60 cases

involved testimony provided by Dr. Garcia as a treating physician. In other words,

100 percent of the cases in which Dr. Garcia testified “for the plaintiff” was

testimony provided as a result of his relationship as the plaintiff’s treating

11physician, and there were no cases on the list in which he testified “for the

plaintiff” as a result of being retained as an expert witness for the plaintiff.

This would alter significantly the percentages: instead of a 70/30 split, we

would have a 100/0 split, because the hypothetical differentiated list reveals that in

every single case in which Dr. Garcia testified as a retained expert (140 out of

200 cases), he did so only on behalf of the defense. The remaining 60 cases

involved testimony provided not as a plaintiff’s retained expert, but rather as a

result of treatment and care provided as each plaintiff’s treating physician. Though

of course we have no way of knowing whether or how the actual percentages will

be affected by this differentiation, it is clear that Parks was entitled to seek this

information to further discover the extent of any potential bias.

We also find no merit in Orthopedic’s assertion that Parks’ request would

require it to create a document that does not exist. See Orkin Exterminating Co. v.

Knollwood Props., Ltd.

, 710 So. 2d 697 (Fla. 5th DCA 1998).

II. Section 456.057, Florida Statutes

Finally, Orthopedic argues that the order violates section 456.057, Florida

Statutes (2014), which protects against the disclosure of patient information. This

statute concerns the control of patient records and provides:

Except as otherwise provided in this section

..., such records may not

be furnished to, and the medical condition of a patient may not be

discussed with, any person other than the patient or the patient’s legal

representative, or other health care practitioners involved in the

12patient’s care or treatment, except upon written authorization from the

patient. However, such records may be furnished without written

authorization under the following circumstances:

. . . 3. In any civil or criminal action, unless otherwise prohibited by law,

upon the issuance of a subpoena from a court of competent

jurisdiction and proper notice to the patient or the patient’s legal

representative by the party seeking such records.

§ 456.057(7)(a)(3), Fla. Stat. (2014). We find that the order at issue does not

implicate section 456.057 as it does not require Orthopedic to provide any reports

or any information regarding the patients’ medical conditions. Further, it was Dr.

Garcia who provided Parks with the names of certain patients, by producing the

undifferentiated list at his deposition. The trial court’s order simply requires

Orthopedic to review the list previously provided by Dr. Garcia, and to

differentiate the names of patients treated by Dr. Garcia from the names of

individuals upon whom Dr. Garcia performed an IME or CME as a retained expert.

Accordingly, we affirm the order denying Orthopedic’s motion for

protective order.

Affirmed.

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