How far can opposing counsel go in trying to demonstrate bias of an expert witness? The rules may vary from state to state.
In Jordan Grabel, M.D., and State Farm Mutual Automobile Insurance Company, v. Linda Sterrett and Michael Sterrett, No. 4D14-4780 District Court of Appeal of Florida, Fourth District, April 29, 2015 the court dealt with a broad subpoena for financial records of a physician expert.
- Copies of all billing invoices submitted by Dr. Grabel to the Defendants, Defendants’ attorneys including Shawn Patrick Spellacy, Esq., Kirwan & Spellacy, PA, the Defendants’ insurer (State Farm), or agents, or the law firm of Kirw[a]n & Spellacy, P.A., (hereinafter defense law firm), and/or any predecessor and/or successor law firm and/or any of the attorneys presently or formerly employed at the law firm during the years 2009 through 2014 inclusive . . . .
- A document and/or statement that includes the total amount of money paid by or on behalf of the Defendants and/or their attorneys and/or the defense law firm, and/or any predecessor and/or successor law firm, and/or any of the attorneys presently or formerly employed at the law firm, and/or the Defendants’ insurer (State Farm), to Dr. Grabel for work the expert performed as an expert witness on behalf of the Defendants, the Defendants’ attorney, Shawn Patrick Spellacy, Esq., Kirwan & Spellacy, PA, and/or the defense law firm, and/or any predecessor and/or successor law firm, and/or any of the attorneys presently or formerly employed at the law firm, and/or the Defendants’ insurer (State Farm), during the years 2009 through 2014 . . . .
- All documents evidencing the amount or percentage of work performed by Dr. Grabel on behalf of any Defendant and/or defense law firm and/or insurance carrier, during the years 2009 through 2014 inclusive, including without limitation time records, invoices, 1099’s or other income reporting documents . . . .
The court rejected the discovery request citing the Florida rules of civil procedure.
The discovery order in this case departs from the essential requirements of law because it compels discovery clearly beyond that permitted by the rules of procedure.
Florida Rule of Civil Procedure 1.280(b)(5) establishes the parameters of discovery directed to a non-party retained expert.
(5) Trial Preparation: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (b)(1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:
. . . .
(iii) 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:
- The scope of employment in the pending case and the compensation for such service.
- The expert’s general litigation experience, including the percentage of work performed for plaintiffs and defendants.
- The identity of other cases, within a reasonable time period, in which the expert has testified by deposition or at trial.
- 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.
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. . . .