Florida Supreme Court Continues to Allow Asymmetric Discovery between an Insured Defendant’s Retained Expert and an Injured Plaintiff’s Health Care Provider
On April 13, 2017, the Florida Supreme Court in Worley v. Central Florida Young Men’s Christian Ass’n, Inc., 228 So. 3d 18 (Fla. 2017), held that the attorney-client privilege shields from discovery virtually any attempt to determine the relationship between a plaintiff’s law firm and a plaintiff’s treating physicians. The Court in Worley did not address the opposite situation, namely, the extent to which attorney-client privilege, or some other privilege, shields from discovery the relationship between an insured defendant’s law firm and the insured defendant’s retained compulsory medical examiner.
At the outset, it is important to be aware of the difference between these two types of witnesses. The Florida Evidence Code considers a plaintiff’s treating physician (i.e., the health care professional a plaintiff presents to for medical services following an accident) as a fact witness or a lay witness, even when giving what would be considered an expert opinion. However, when a defendant’s attorney retains a physician to perform a compulsory medical examination of a plaintiff, whom in fairness is a physician not of a plaintiff’s choosing, the Florida Evidence Code treats such a physician as a retained expert.
Following the Court’s Worley decision, defense attorneys in several districts, in responding and objecting to discovery directed to the defense attorney’s retained expert, would cite to Worley to avoid disclosing the existence of a financial relationship between the retained expert and the defense attorney’s nonparty law firm, or between the retained expert and the nonparty insurer. Soon after, district courts in Florida took notice of how one-sided expert financial discovery became following Worley.
Specifically, the Fourth District in Dodgen v. Grijalva, 281 So. 3d 490 (Fla. 4th DCA 2019) and the Fifth District in Younkin v. Blackwelder, 44 Fla. L. Weekly D549 (Fla. 5th DCA 2019) both certified to the Florida Supreme Court questions of great public importance. No statement better encapsulates how asymmetric this area of the law became under Worley than Judge Lambert’s illustration in Younkin:
“A plaintiff law firm can refer 100 of its clients to the same treating physician, who may later testify as an expert witness at trial, without that referral arrangement being either discoverable or disclosed to the jury, yet if a defense firm sends each one of these 100 plaintiffs to its own expert to perform a CME [compulsory medical examination] under Florida Rule of Civil Procedure 1.360, and then later to testify at trial, the extent of the defense law firm’s financial relationship with the CME doctor is readily discoverable and can be used by the plaintiff law firm at trial to attack the doctor’s credibility based on bias.”
Florida Supreme Court Opinions
On October 14, 2021, the Florida Supreme Court issued two opinions that addressed the issue.
First, in Dodgen v. Grijalva the Florida Supreme Court held that the lower tribunal did not depart from the essential requirements of law when it refused to grant defendant Dodgen’s motion for a protective order precluding plaintiff Grijalva from discovering a financial relationship between Dodgen’s expert witnesses and Dodgen’s nonparty insurer and nonparty law firm. The Court expressly noted that Worley addressed the narrow issue of “whether the attorney-client privilege protects a party from being required to disclose that his or her attorney referred the party to a physician for treatment,” which was not the issue before the Fourth District or the lower tribunal. Thus, the Court agreed that the Fourth District was correct in denying Dodgen’s petition for writ of certiorari following the lower tribunal’s denial of Dodgen’s motion for a protective order. The Court also recognized that Worley had created an uneven playing field skewed in favor of plaintiffs when it comes to the discovery of financial bias relationships between the parties’ medical experts and nonparty representatives. However, the Court concluded by noting that Worley should be reexamined, only in a case in which it is actually at issue.
Second, in Younkin v. Blackwelder the Florida Supreme Court found that its decision in Dodgen was controlling. Similar to Dodgen, the lower tribunal in Younkin denied a motion for a protective order and required the defendant to produce information regarding the financial relationship between the defendant’s nonparty insurer and the defendant’s expert witnesses. Defendant Younkin then filed a petition for writ of certiorari to the Fifth District, which the Fifth District denied, concluding that Worley did not overrule preexisting case law that allowed the discovery of a doctor–law firm relationship or doctor-insurer relationship. The Supreme Court agreed with the Fifth District and the lower tribunal, finding that there had been no departure from the essential requirements of law, and again found Worley inapplicable to the situation presented. However, the Court took great pain in distinguishing dissent’s position, on the basis of the matter before it being presented via certiorari jurisdiction rather than via a plenary appeal, which is discussed in the next paragraph.
In dissent in both cases, Justice Polston noted that, post-Worley, there is a compelling case to be made that plaintiffs are receiving more favorable treatment than defendants under the law with regard to expert financial discovery. Justice Polston was willing to recede from Worley as a result of that unequal treatment, despite the Court’s limited authority when its certiorari jurisdiction is invoked. Notably, he buttressed his dissent by explaining that the plaintiff/appellant in Worley presented the issue to the Court via certiorari jurisdiction, and that the Court created this disparate treatment via its certiorari jurisdiction, so it would not be inappropriate for the Court to undo via certiorari jurisdiction that which the Court previously did via certiorari jurisdiction.
For practitioners preparing responses to a plaintiff’s discovery requests related to the financial relationship between nonparty law firms and nonparty insurers and retained experts, circuit courts and appellate courts are unlikely to be sympathetic to motions for protective orders and a petition for certiorari relief, respectively, seeking to protect this information from disclosure.
However, it is clear from both opinions that the Florida Supreme Court avoided the issue before it on jurisdictional grounds, so it is likely the issue will end up before the Court again in the future. Post-Dodgen and -Younkin, it seems that the disparate treatment Worley created may be addressed only on plenary review after a trial court and district court prohibit discovery from a plaintiff in the same manner as sought in Worley, as was expressly stated by Justice Polston in his dissent.