What Parameters may be Sought

Florida Rule of Civil Procedure 1.280(b)(5) outlines the parameters of what may be sought from an expert witness, and was adopted in an effort to strike a balance between a need for information to demonstrate potential bias with an expert’s right to be free form harassing, intrusive and expensive discovery requests. Subsequently, the case of Elkins v. Syken, 672 So. 2d 517 (Fla. 1996), and others, expanded the boundaries of what was permissible even more to allow parties to further explore financial interests of medical witnesses as well as volume of referrals to those witnesses. Lately, in a greater effort to discredit the opposition’s expert witness, parties have engaged in irrelevant, burdensome and harassing discovery well beyond the bounds of Rule 1.280(b)(5) and Elkins.

In the case of Orthopedic Center of South Florida v. Sode, the Respondent Sode’s attorneys sent subpoenas to both the defense’s medical expert witness, and to the business entity with which the defense’s medical expert was affiliated, seeking wide ranging business and financial information beyond the limitations of Rule 1.280. In arguing, the Respondent urged that Rule 1.280 did not apply to the business entity with whom the expert doctor was affiliated because as a corporation, it was not afforded the same expert protections.

The Fourth DCA held that the same financial discovery limitations that apply to defense expert witnesses, apply to the business entity with which the expert is affiliated. The Court reasoned that the Respondent could not circumvent Rule 1.280 by requesting the otherwise impermissible discovery, and to hold otherwise, would render Rule 1.280 and Elkins meaningless.

In rationalizing its decision, the 4th DCA explained that the boundaries of permissible discovery had already been expanded far enough, and that discovery was never intended to be, and should not be, used as a tool to chill a non-party witnesses willingness to act as an expert.
Based on the 4th DCA’s ruling, we anticipate receiving more reasonable discovery requests of our experts in the future.