The Changing Rules Concerning Expert Witness Discovery

The costs of personal injury litigation are always high. For personal injury attorneys in the state of Florida, keeping costs as low as possible is a major concern in order to ensure their client gets the largest compensation amount possible.

Personal injury litigation requires the plaintiff to hire an expert witness doctor who is able to testify about the injuries they suffered in an accident. For this purpose, it's common for the victim to use their own primary care doctor. This is often cheaper for the plaintiff—plus the doctor is familiar with their patient's health concerns.

This is referred to by the courts as a “hybrid witness”. These expert witnesses offer insight to the court during the trial. The cost of hiring these witnesses is a critical component of litigating a personal injury claim.

During the pre-trial phase of a lawsuit, called the discovery, the plaintiff and the defendant are allowed to gather evidence from the opposing party in order to better defend their interests. This evidence is gathered through record requests, requests of admissions, requests for interrogatory answers, and depositions. For those parties that are not directly involved with the discovery, subpoenas are used to request their testimony. The discovery process also includes completing background investigation of the medical expert speaking for the plaintiff.

From a legal perspective, there are limits to how much information an attorney should obtain during this pre-trial period. These laws are described by the Florida Rule of Civil Procedure 1.280—expert witnesses are addressed specifically in subsection 4. This law states that, “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.”

The amount and type of expert witness discovery was regulated for a number of reasons. The Florida Supreme Court stated that there is a need to “…balance between a party's need for information concerning an expert witness's potential bias and the witness's right to be free from burdensome and intrusive production requests,” setting the precedent in Elkins v. Syken, 1995.

The primary issue for the court was that defending attorneys were aggressively seeking any evidence that they could find to attempt to weaken the medical witness's credibility. These requests can be a great burden for the witness, often infringing on the privileges of the doctor-patient and attorney-client relationships. Not to mention, they quickly increase the cost of the discovery and are used to harass and even embarrass the witness's and their patients.

Basically, the defendants were stopping up to court procedures by requesting unnecessary, intrusive, and expensive to gather evidence that added very little to their case. It was stall and sabotage mission.

What's worse about the measures that were taken by the defense for discovery is that they are deliberately used to push costs for both the personal injury attorneys and their clients higher than the potential for compensation.

In the case of Elkins v. Syken, the discovery process was allowed to continue, but the amount and degree that the defense could pursue was limited. The court's concern was that many experts would not wish to testify on their patient's behalf (for any of the above reasons) and this would result in an infringement on the plaintiff's right to compensation and access to justice.

The Legal History of Expert Witness Discovery Rules

This case resulted in the Supreme Court extending the right to obtain information by the plaintiff concerning the relationship between the expert witness for the defense and the party to the action. The reason for the Supreme Court's decision was based on the financial bias between the defense and the expert witness.

The Court stated “the more extensive the financial relationship between a party and a witness, the more it is likely that the witness has a vested interest in that financially beneficial relationship continuing.”

Springer v. West, (2000)

The Florida Rule of Civil Procedure's 1.280 rules were expanded by Florida Courts to include the right by the plaintiff to look into the monetary history of an expert and the defense in order to determine financial bias. The Florida 5th Circuit Court summed up this expansion with:

“Since the defendant relies on his or her insurer and insurer-appointed lawyer to employ necessary witnesses, it is the relationship between those parties and the experts which are critical to the question of bias on the part of the witness.”

Morgan, Colling & Gilbert, P.A. v. Pope, 2001

In order to show fairness in the discovery process, the Florida 2nd District Court determined that the monetary history of the plaintiff's legal counsel and their expert witnesses was also subject to the same limited discovery. The result was an ever-expanding list of rules for the right of discovery by the defense.

Katzman v. Rediron Fabrication, Inc., 2011

In 2011, the Florida 4th Circuit Court expanded the witness discovery rules more than any previous case since Elkins v. Syken in 1995. The defense in the case called into question the use of an “allegedly controversial outpatient surgical procedure.” They based their argument in three points.

First, the defense argued that Dr. Katzman's procedures were provided to his patients pursuant to a letter of protection agreement that stated that his services would be paid for out of the resulting lawsuit's settlement.

Second, the defense sought to prove that Katzman had recommended the dubious procedure more often than not for circumstances involving litigation.

Finally, it was argued that the costs for the procedures were inflated in those cases which involved litigation.

As a result of the defense's arguments, as well as the questionable nature of the procedure, the Court determined that these were “the most unusual or compelling circumstances” to justify expanding the right to discovery of a doctor's business and financial records, as required by FLRCP 1.280.

The Court stated:

“In this case, the discovery that is sought is not relevant merely to show that the witness is biased based on an ongoing financial relationship with a party or lawyer. We agree that Elkins discovery should generally provide the sufficient discovery into such financial bias. The discovery here is relevant to a discreet issue, whether the expert has recommended an allegedly unnecessary and costly procedure with greater frequency in litigation cases, and whether the expert, as a treating physician, allegedly overcharged for the medical services at issue in the lawsuit.”

Therefore, the Court agreed that extensive discovery, however intrusive, was justified in Katzman's case in order to find case-specific information that would prove relevant to the profit of the doctor in cases involved litigation. As a result, the doctor was required to provide extensive amounts of information to the defense.

The Court ruled that Katzman would have to provide:

(a) Dr. Katzman will provide the amounts he has collected from health insurance coverage on an annual basis in 2007, 2008, 2009 and 2010 regarding the type of surgery he performed on George Robert Martin and Allison Minjares, stating the number of patients for whom he performed such a procedure in each year, and the amounts received during each of those years from those health insurers.

(b) Dr. Katzman will provide the amounts he has collected under letters of protection received from attorneys on an annual basis in 2007, 2008, 2009, and 2010 regarding the type of surgery he performed on George Robert Martin and Allison Minjares, stating the number of patients for whom he performed such a procedure in each year, and the amounts received during each of those years pursuant to those letters of protection.

Dr. Katzman was, as a result, required to provide an exhaustive amount of information. The Court responded, stating:

“We expect that trial judges will exercise their discretion carefully when circumstances require discovery in excess of Elkins and not allow the exception to swallow the rule. Trial courts should not allow discovery from hybrid experts to become a tactical litigation weapon to harass the witness, the party, or the law firm(s).”

This statement showed the Court's understanding of the underlying implications of their ruling. They were determined to allow for discovery as necessary, but not allow the use of discovery as a strategy for raising the burden of litigation costs for the plaintiff. This ruling was intended to be the exception, not the rule.

Crable vs State Farm Insurance

The Court's fears in Dr. Katzman's case proved to be true. Following their ruling, it became commonplace for defense attorneys in Florida to seek discovery of billing practices and letters of protection like those found in the case of Dr. Katzman.

This defense practice will undoubtedly increase plaintiff's litigation costs in Florida personal injury cases. It is our hope that the Courts will take the necessary measures to prevent this type of action and to protect the plaintiff's right to justice.

Florida personal injury attorneys  are paying careful attention to cases like Crable v. State Farm Mutual Automobile Insurance Company, in which the defense is seeking to use the discovery process to justify extensive and laborious production of financial and business records by the plaintiff's expert witnesses.

In this case, Dr. Deukmadjian performed a suspiciously expensive surgery for the plaintiff pursuant to a letter of protection, not unlike Kratzman. It has not been suggested that there has been a disparity between the doctor's use of surgery for patients in litigation, versus those not in litigation. However, the disparity in billing amounts for the surgeries is at issue.

In the Crable vs State Farm case, the defense attorneys for the insurance company accused the injury firm Morgan & Morgan of having a mutually beneficial and profitable relationship with the owner of The Deuk Spine Institute, Dr. Ara Deukmedjian. State Farm used rulings like the ones above to force Morgan & Morgan into providing information about their relationship Dr. Deukmedjian. They alleged that the spinal surgeon had a lucrative relationship with the law firm since Morgan & Morgan has referred approximately 176 clients to the surgery in center in the last 3 years. Additionally, it was discovered that over that period of time Morgan & Morgan paid The Deuk Spine Institute nearly $3 million for their services. State Farm argued that of this 3 million dollar sum, a good portion was for one specific procedure. They claimed this to be evidence that there was something shady going on.  State Farm continued by implying that Morgan & Morgan was supply and in contact with Deuk Spine about their cases, including which were in pre-litigation and litigation. This they claimed was evidence of collusion between the two companies for profit. State Farm also expressed that they were sure that there was something shady about that one procedure showing up over and over. Dr. Deukmedjian testified that only 5% of his patients received that surgery. State Farm retorted that the overlap between patients that had the surgery and clients of Morgan & Morgan was 80 to 90%.  The Florida Court sided with State Farm, forcing Morgan & Morgan to produce a history of all payments  the surgery center for 176 cases in question. The law firm was also forced to produce documents that may have implicated them in sharing information with the doctor regarding cases in litigation and how much insurance was available. 

The judge in the Crable case granted the defense's motion to compel Dr. Deukmedjian to provide business and financial records. The judge's ruling was made based on the precedent that the guidelines created in the case of Dr. Kratzman were either/or requirements.

This ruling has the potential to create devastating results for the plaintiffs of personal injury cases involving a hybrid witness if it is not overturned.