MORGAN, COLLING & GILBERT, P.A., PETITIONER,
v.
JAMES E. POPE, M.D., HEARTCARE INSTITUTE OF TAMPA, P.A., ALISE PASTORIK, ARNP, AND FLORIDA MEDICAL CLINIC, P.A., RESPONDENTS

Fla. 2d DCA | 2001-07-25
No. 2D01-97
WHATLEY, A.C.J., and GREEN, J., Concur.
798 So. 2d 1 Florida District Court of Appeal, Second District (2001) Positive Treatment
Cited by 43 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

A law firm sought certiorari review of a discovery order requiring production of billing invoices from medical expert witnesses. The court dismissed the petition, holding that the discovery order does not create irreparable harm necessary for certiorari review and, on the merits, conforms to established law permitting discovery of financial relationships between attorneys and expert witnesses to demonstrate potential bias.


Holding

The court dismissed the petition for lack of jurisdiction because Morgan Colling failed to demonstrate irreparable harm necessary for certiorari review. Additionally, on the merits, the discovery order does not depart from the essential requirements of law; rather, it conforms to established policy requiring disclosure of financial relationships between witnesses and parties or their representatives to permit juries to assess witness bias.


Headnotes

[1] Certiorari review of a discovery order is appropriate only when the order departs from the essential requirements of law, causes material injury throughout the remainder…

[2] Discovery of financial information between an attorney and an expert witness does not typically create irreparable harm sufficient for certiorari review.

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Key Quotes

“Appellate courts do not have automatic certiorari jurisdiction to review every discovery order, even if erroneous. Instead, review by certiorari is 'appropriate when a discovery order departs from the essential requirements of law, causing material injury to a petitioner throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal.'”

Establishes the stringent standard for certiorari review of discovery orders

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Facts & Procedural History

Morgan Colling, a law firm representing a plaintiff in a medical malpractice action, disclosed two medical expert witnesses. When deposed, neither exp…

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Opinion of the Court
CASANUEVA, Judge.

CASANUEVA, Judge.

The petitioner (Morgan Colling) seeks certiorari review of a pretrial discovery order. We dismiss the petition.

Morgan Colling represents the plaintiff in a medical malpractice action against the respondents. Pursuant to a pretrial order, the plaintiff disclosed the identity of two medical expert witnesses. Although each physician was deposed, neither was able to provide sufficient information regarding its financial relationship with Morgan Colling. The respondent then sought production of the information directly from Morgan Coll-ing, which moved for a protective order. After a hearing, the circuit court ordered Morgan Colling to produce deposition and trial transcripts of the expert, witnesses that it possessed as well as copies of billing invoices submitted by the experts to Morgan Colling for the previous three years, including those submitted for the pending malpractice action.1 Now, Morgan Colling seeks certiorari review of that order in this court.

Appellate courts do not have automatic certiorari jurisdiction to review every discovery order, even if erroneous. Instead, review by certiorari is “appropriate when a discovery order departs from the essential requirements of law, causing material injury to a petitioner throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal.” Allstate Ins. Co. v. Langston, 655 So. 2d 91, 94 (Fla.1995). Often, discovery of financial information will not create irreparable harm. Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097 (Fla.1987).

Our analysis begins with Allstate Insurance Co. v. Boecher, 733 So. 2d 993 (Fla.1999), which provides guidance on the underlying policy that might sanction disclosure of the sought-after information but which contains a significant and obvious factual distinction. In Boecher the discovery order was directed to a named party, Allstate Insurance Company. In this case, however, the order is directed to the non-party attorneys of the plaintiff. Nevertheless, the supreme court focused in Boecher on the jury’s truth-seeking function and the corresponding fairness of a jury trial. That focus is no less applicable to this situation than it was in Boecher. Furthermore, there exist a number of significant factual similarities between Boecher and this matter:

(1) Each respondent inquired into the extent of a financial relationship between an expert witness and a key actor in the pending litigation.

(2) The sought-after information would reveal how much money the expert made from its relationship with the petitioner. (3) The information is directly relevant to the respondent’s efforts to demonstrate a witness’s bias. As the supreme court implied in Boecher, the more extensive and ongoing the financial relationship between the party and the expert witness, the greater the witness’s interest in continuing that relationship. Boecher, 733 So. 2d at 993 (“[W]hen the discovery sought is from the party who has employed the expert regarding the extent of that party’s relationship with the expert and the financial remuneration paid by the party to the expert witness over a period of time[,] ... [t]he opposing party has no corresponding ‘right’ to prevent this discovery.”) A witness’s financial incentive to continue an advantageous association is no less applicable to an attorney who hires the witness than to a party who does the same thing and, in either instance, could indicate a degree of bias not immediately apparent to a jury.

(4) Limiting discovery of this information would affect the truth-seeking function of a jury, for the failure to present any ultimately admissible information would diminish the jury’s right to assess the potential bias of the witness. As the Third District recently explained in Flores v. Miami-Dade County, 787 So. 2d 955 (Fla. 3d DCA 2001), “As illustrated by Elkins v. Syken, 672 So. 2d 517 (Fla.1996), and Florida Rule of Civil Procedure 1.280(b)(4)(A), there must be reasonable latitude for inquiry about the extent of a trial expert’s alignment with one side, or another, of litigation practice.”

In considering a petition for certiorari the reviewing court’s first duty is to assess whether the petitioner has made a prima facie showing that the order creates irreparable harm. If the petitioner does not make such a showing, the court lacks jurisdiction and will dismiss the petition. Bared & Co. v. McGuire, 670 So. 2d 153, 157 (Fla. 4th DCA 1996) (en banc), cited in Boecher, 733 So. 2d at 999. Here, we find that discovery of the financial relationship between the attorneys and the expert witnesses does not create irreparable harm. If an error is made at trial concerning the admissibility or use of that information, there can be adequate redress through a plenary appeal.

Furthermore, the discovery the respondents seek does not impinge a fundamental right, nor does it invade a privilege. The circuit court ordered the information to be compiled in redacted form, so that no privileged attorney-client information will be revealed. The kind of material sought is the same type of information that must be reported to the federal government for income tax purposes, so its disclosure is not fundamentally harmful. Thus, we have concluded that the harm of which Morgan Colling complains is not the type of irremediable damage reviewable by certiorari. Martin-Johnson, 509 So. 2d at 1099.

Even if we were to consider that irreparable harm had been shown and decided to consider the petition on its merits, see Bared v. McGuire, 670 So. 2d at 157, we would hold that the order under review does not depart from the essential requirements of the law. Recently, the Fifth District, in dicta, has suggested that “a defendant may question a plaintiff about any relationship between his or her attorney and the plaintiffs expert.” Springer v. West, 769 So. 2d 1068, 1069 (Fla. 5th DCA 2000). This conclusion is a natural and logical extension of the requirement that defendant insurance companies disclose their financial relationships with their chosen expert witnesses. Thus, rather than departing from the essential requirements of the law, the circuit court’s order conforms to the trend insuring fairness in the jury trial process by permitting discovery of a financial relationship between a witness and a party or representative. Finally, we observe that neither expert was able to provide documentary information regarding his relationship with Morgan Colling. Production of information such as the taxpayer identification number and 1099 forms, which are generally discoverable, Olivas v. Bravo, 795 So. 2d 103 (Fla. 3d DCA 2001), might have rendered the discovery request directed to the petitioner moot or inappropriate.

The petition is dismissed for lack of jurisdiction.

WHATLEY, A.C.J., and GREEN, J., Concur. . We note that Morgan Colling did not object to the production of either the deposition or trial transcripts; rather, its challenge to the circuit court’s order is confined to the production of invoices.


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Citator

Cited By (21 total)

  • …, 94 (Fla.1995). To determine whether this court has jurisdiction for cer-tiorari review, we must first “assess whether the petitioner has made, a prima facie showing that the order creates irreparable harm.” Morgan, Colling & Gilbert, P.A. v. Pope, 798 So. 2d 1, 3 (Fla. 2d DCA 2001). Trade secrets are privileged under section 90.506, Florida Statutes (2000), and Florida cases recognize that their disclosure creates the potential for irreparable harm. See Salick Health Care, Inc. v. Spunberg, 722 So. 2d 944…
  • Nussbaumer v. State, 882 So. 2d 1067 (Fla. 2d DCA 2004)
    …o. 2d 91 (Fla.1995). [*1072] To determine whether a reviewing court has jurisdiction, the court must first decide whether the petitioner has demonstrated that the order complained of creates irreparable harm. Morgan, Colling & Gilbert, P.A. v. Pope, 798 So. 2d 1 (Fla. 2d DCA 2001). In this case, Pastor Nussbaumer does not have an adequate remedy by appeal because he is not a party to the circuit court proceedings. As we stated in Briggs v. Salcines, 392 So. 2d 263 (Fla. 2d DCA 1980), the only way that a non…
  • Chin v. Caiaffa, 42 So. 3d 300 (Fla. 3d DCA 2010)
    …sible error in the trial of this case. It is perfectly permissible to impeach the credibility of a medical witness with statements from the doctor’s own records, including that he was referred by counsel. See Morgan, Colling & Gilbert, P.A. v. Pope, 798 So. 2d 1, 3 (Fla. 2d DCA 2001); Flores v. Miami-Dade County, 787 So. 2d 955, 958 (Fla. 3d DCA 2001). The trial court erred in not allowing this evidence of bias to be brought to the attention of the jury on cross-examination of the plaintiffs urological expe…

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