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Orthopedic Center of South Florida v. Sode

Florida Court of Appeals, Fourth District

June 12, 2019

MICHAEL SODE, Respondent.

         Not final until disposition of timely filed motion for rehearing.

          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.


         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? 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 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 ...

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