Kristina Michelle Brana, Roscox Corporation, and Jordan Grabel, M.D. v. Adolfo Roura , 2014 Fla. App. LEXIS 12819 ( 2014 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2014
KRISTINA MICHELLE BRANA, ROSCOX CORPORATION,
and JORDAN GRABEL, M.D.,
Petitioners,
v.
ADOLFO ROURA,
Respondent.
Nos. 4D14-639 and 4D14-677
[August 20, 2014]
Consolidated petitions for writ of certiorari to the Nineteenth Judicial
Circuit, St. Lucie County; Dwight L. Geiger, Judge; L.T. Case No. 562012
CA002123.
Carri S. Leininger of Williams, Leininger & Cosby, P.A., North Palm
Beach, for petitioners, Kristina Michelle Brana and Roscox Corporation.
Ian E. Robinson of Adams | Coogler, P.A., West Palm Beach, for
petitioner, Jordan Grabel, M.D.
Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm
Beach, Ronald M. Rowars, P.A., Port St. Lucie, and Custer~McGovern,
Lake Worth, for respondent.
PER CURIAM.
We grant the consolidated petitions for writ of certiorari, and quash the
trial court’s orders denying petitioners’ motions for protective order filed
on September 27 and October 2, 2013. Respondent’s subpoenas issued
to hospitals where petitioner Grabel performed spinal surgeries sought
“each and every document . . . to include all records, pertaining to [Dr.
Grabel].” As worded, the subpoenas would require the production of
confidential medical records of Dr. Grabel’s patients. However, respondent
failed to show to the trial court that he complied with the notice provisions
of section 456.057(7)(a), Florida Statutes (2012), which requires notice to
patients whose medical records are sought before issuance of a subpoena
for the records by a court of competent jurisdiction. Coopersmith v.
Perrine, 91 So. 3d 246 (Fla. 4th DCA 2012).
Respondent’s subpoenas issued to insurance carriers requiring
disclosure of financial information concerning payments made by those
carriers to Dr. Grabel for services provided as a litigation expert seek
information protected from disclosure by Florida Rule of Civil Procedure
1.280(b)(5)(A)(iii)4., which states “the expert shall not be required to
disclose his or her earnings as an expert witness or income derived from
other services.” Elkins v. Syken, 672 So. 2d 517, 522 (Fla. 1996);
Gramman v. Stachkunas, 750 So. 2d 688, 690 (Fla. 5th DCA 1999). A
subpoena may not be used to secure discovery of financial or business
records concerning a litigation expert unless “unusual or compelling
circumstances” have been shown. Smith v. Eldred, 96 So. 3d 1102, 1104
(Fla. 4th DCA 2012); Miller v. Harris, 2 So. 3d 1070, 1073 (Fla. 2d DCA
2009). The trial court’s orders denying petitioners’ motions for protective
orders do not state any basis for a finding of unusual or compelling
circumstances in this case.
Accordingly, the trial court’s orders denying petitioners’ motions for
protective order are vacated and remanded for further proceedings
consistent with this opinion.
Petitions granted; orders denying motions for protective orders vacated
and remanded with directions.
GROSS, CONNER and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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