Jordan Grabel, M.D., Kristina Michelle Brana and Roscox Corporation v. Adolfo Roura , 174 So. 3d 606 ( 2015 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
JORDAN GRABEL, M.D., KRISTINA MICHELLE BRANA, and ROSCOX
CORPORATION,
Petitioners,
v.
ADOLFO ROURA,
Respondent.
Nos. 4D15-194 & 4D15-199
[September 9, 2015]
Consolidated petitions for writ of certiorari to the Circuit Court for the
Nineteenth Judicial Circuit, St. Lucie County; Dwight L. Geiger, Judge;
L.T. Case No. 562012CA002123.
Ian E. Robinson of Adams | Coogler, P.A., West Palm Beach, for
petitioner, Jordan Grabel, M.D.
Carri S. Leininger of Williams, Leininger & Cosby, P.A., North Palm
Beach, for petitioners Kristina Michelle Brana and Roscox Corporation.
Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm
Beach, Ronald M. Rowars of Ronald M. Rowars, P.A., Port St. Lucie, and
Andy M. Custer of Custer ~ McGovern, Lake Worth, for respondent.
PER CURIAM.
We grant in part these consolidated petitions for writ of certiorari
seeking review of trial court discovery orders.
Following our decision in Brana v. Roura, 144 So. 3d 699 (Fla. 4th DCA
2014), the trial court determined that the deposition responses of Dr.
Jordan Grabel, the defense expert witness, were inconsistent with the
interrogatory answers provided by defense counsel. The inconsistencies
concerned the percentage of income the doctor derives from working as an
expert witness and the number of times he has testified for plaintiffs and
defendants in personal injury litigation. The trial court concluded that
these inconsistencies constituted “the most unusual or compelling
circumstances” that allowed production of the expert’s “financial and
business records.” See Fla. R. Civ. P. 1.280(b)(5)(A)(iii).
We disagree. The disputed discovery exceeds the provisions of rule
1.280(b)(5)(A)(iii)4, which limits discovery to an approximation of the
expert’s involvement as an expert witness. See Grabel v. Sterrett, 163 So.
3d 704 (Fla. 4th DCA 2015) (quashing improper expert discovery directed
at this same doctor).
The defendants and the doctor provided all the information required on
the issue of bias. The court nevertheless allowed plaintiff to issue
subpoenas to twenty non-party insurance carriers, not shown to have any
involvement in this litigation.1 The subpoenas require production of
financial records (including tax records) showing the total amount of fees
paid to the doctor for expert litigation services since 2009. This extensive
financial discovery as to a retained expert exceeds that allowed by the rule
and is unnecessary. The rule expressly provides that “the expert shall not
be required to disclose his or her earnings as an expert witness.” Id.
Here, the alleged inconsistencies do not constitute “unusual or
compelling circumstances” to warrant such broad financial disclosure.
See Buck v. Chin, 19 So. 3d 1132, 1134 (Fla. 3d DCA 2009). There is no
showing that the inconsistencies are the result of falsification,
misrepresentation, or obfuscation. See id.
We deny the petition as to the other discovery permitted without
discussion.
Petition granted in part.
STEVENSON, LEVINE and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
1 Discovery from an insurer acting as the defendant’s agent may be proper
pursuant to Allstate Insurance Co. v. Boecher, 733 So. 2d 993, 996 (Fla. 1999).
See Springer v. West, 769 So. 2d 1068, 1069 (Fla. 5th DCA 2000) (“Where an
insurer provides a defense for its insured and is acting as the insured’s agent,
the insurer’s relationship to an expert is discoverable from the insured.”).
However, no such argument has been presented in this proceeding.
2