Inconsistencies between the defense expert’s interrogatory answers and his deposition testimony regarding the percentage of income the doctor derived from working as an expert witness, and the number of times he testified for plaintiffs versus defendants, was not sufficient to satisfy the “most unusual or compelling circumstances” test under Florida Rule of Civil Procedure 1.280.  This was the decision handed down by Florida’s 4th DCA on September 9, 2015 in the case of Jordan Grabel, M.D. v. Roura (Case No. 4D15-194 & 4D15-199). 

Rule subsection 1.280(b)(5)(A)(iii)4 allows discovery into the expert’s financial and business records to show bias only “under the most unusual or compelling circumstances.” The 4th District reversed the trial court’s decision, allowing plaintiff to issue 20 non-party subpoenas to insurance carriers not involved in the litigation to explore the expert’s relationship with the carriers.  The subpoenas required production of financial records, including tax records showing the total amount of fees paid to the doctor for expert litigation services.

The District Court found: “This extensive financial discovery as to a retained expert exceeds that allowed by the rule and is unnecessary… the alleged inconsistencies do not constitute ‘unusual or compelling circumstances’ to warrant such broad financial disclosure.”  In rendering its decision, the Court emphasized that while there were inconsistencies, there was no showing that the inconsistencies were the result of “falsification, misrepresentation, or obfuscation,” hinting that, if there were, additional discovery may be warranted.

This case provides valuable guidance regarding extraordinary discovery requests directed to experts. This ruling suggests the courts will protect experts from intrusive discovery absent some type of malfeasance, and will, in most cases, require parties to show and argue bias from basic expert discovery.  Nonetheless, expert witnesses and trial lawyers need to beware of the consequences of not being fully forthright with discovery directed to the expert’s financial interests.