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Orthopedic Care Center v. Devon Parks, Case No. 3D14-988 (3rd DCA)

In Parks, the Third DCA affirmed the trial court's denial of a protective order requested by the defense. The plaintiff filed suit again the defendant following an auto accident, and during the suit, the defendant retained an orthopedic physician to conduct a compulsory medical examination of the plaintiff. At the physician's deposition, the physician testified that he testifies on behalf of the defense seventy percent of the time, and the plaintiff thirty percent of the time. The physician testified that he could not identify which of the cases listed on his testimony list involved patients who he was treating. The plaintiff later noticed for deposition a person at the physician's practice with knowledge of which of the persons on the testimony list were actual patients of the physician, as opposed to individuals who the physician examined per a CME. The defendant objected.

The trial court overruled the defense's objection. The trial court found that Rule 1.280 permits discovery regarding testimony given by an expert in their capacity as a retained expert, and a list which combines cases in which the physician testified as an expert with those in which the physician testified as a treating physician does not comply with purpose of Rule 1.280.

The Third DCA analysed Elkins v. Syken, 672 So. 2d 517 (Fla. 1996) , in which the Florida Supreme Court approved a Fourth DCA decision that outline the parameters of discovery of expert financial information. The Third DCA noted that Rule 1.280 and Elkins focus the discovery to be provided by the expert, and require the expert to specifically identify those cases in which the expert has testified by deposition or trial. The Third DCA further noted that it logically follows that a party may discovery those cases in which an expert testifies as an expert. While the physician provided an extensive list of cases in which he testified, he was unable to distinguish those cases in which he testified as an expert and those in which he testified as a treating physician. The Third DCA noted that the distinction is relevant, and may expose bias. The court exemplified how the distinction may expose bias. Accordingly, the Third DCA affirmed the trial court's denial of the defendant's request for a protective order.


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