How Much Discovery from Defense Medical Experts is Permissible Under Florida Law?
- United States
- 08/29/2008
The Plaintiff’s Bar has aggressively mounted attacks, from jurisdiction to jurisdiction, on Defense Medical Experts, particularly those that turn their “winner” cases into “losers” on the basis of the expert’s testimony on issues of extent of injury; permanent impairment and/or causation. From collecting deposition transcripts to income information, the Plaintiff’s Bar has had a wide latitude of discovery available to it to impeach the credibility of the fine defense doctor. Many times the defense is at the mercy of the Circuit Court Judge’s discretion as to how expansive a search a Plaintiff may conduct in discovery. The Second District Court of Appeals has now ruled, in an opinion filed 8/20/08, that Plaintiffs have gone too far!
In the case of Brittany A. Graham and Yolanda Graham v Kimberly V Brown Dacheikh and Ali Dacheikh, the Defendants, Brittany and Yolanda Graham sought petition for writ of certiorari to quash a discovery order. The Order compelled Dr. Stephen Sergay, a neurologist who performed a medical exam on the plaintiff, Kimberly V Brown Dacheikh, pursuant to Fl R. C P 1.360 to produce “all reports of examiner” that he has prepared pursuant to that rule of procedure in any other lawsuit between 2004 and 2006. The Order permitted the doctor to redact personal information from those reports; however, all other information in the reports had to remain intact.
The Court granted petition and quashed the Order on review. It reported that it appeared that the medical reports for nonparties was desired not to discover evidence relevant to prove plaintiff’s case; but, rather to give Plaintiff’s lawyer a basis to engage in impeachment of the doctor. The Court held that the trial court’s reliance on Amente v Newman, 653 So 2d 1030, which it distinguished, and refusal to obey the express language of section 456.057(7), Florida Statutes 2006, was incorrect. It further stated that “this order departs from the essential requirements of the law and causes irreparable injury to the privacy rights of nonparties who have been given no notice and no opportunity to be heard in this proceeding.” The Court further noted in a footnote that Dr. Sergay or one of the patients whose report was to be produced could have filed an objection to this discovery; but, for practical purposes, the precedent gives defendants standing to raise these privacy concerns, citing Amente, 653 So 2d 1030; Pusateri v Fernandez, 707 So 2d 892 (2d DCA 1998) and Sykens v Elkins, 644 So 2d 539 (Fla. 4th DCA 1994, approved 672 So 2d 517 (Fla 1996).
This is a significant and favorable result for the Defense Bar. Defense Medical Expert Discovery often sought is burdensome; time consuming and expensive for the client, defense lawyer as well as the doctor. It also has a potential “chilling effect” on the use of certain defense physicians who perceive this type discovery as harassing and compromising. This case shall be the new sword (or shield) carried by defense counsel when these issues arise! For additional information, contact Cindy Shatkin Avidan.
