Recently, on October 14, 2021, the Supreme Court of Florida revisited its ruling in Worley v. Central Florida Young Men's Christian Ass'n, 228 So. 3d 18 (Fla. 2017) in two significant decisions concerning the limits of expert witness discovery. At its core, Worley held that the attorney-client privilege “precludes defense counsel from asking a plaintiff whether his or her attorney referred the plaintiff to a physician for treatment,” and that “a law firm representing a plaintiff in personal injury litigation that refers its clients to a specific physician for treatment is not required to disclose the extent of its referral or financial relationship with the physician.” Id. at 24. The Worley court did note that a defendant could explore credibility issues without conducting discovery into the possible relationship between the physician and the plaintiff’s law firm, which could potentially implicate attorney-client privileged documents and information.
Worley is another milestone case in a line of opinions concerning the limits of financial relationship discovery to a party’s expert. Previously, the Florida Supreme Court held in Allstate Insurance Co. v. Boecher, 733 So. 2d 993 (Fla. 1999), that discovery requests “regarding the extent of that party’s use of and payment to a particular expert” were permissible because they were “directly relevant to a party’s efforts to demonstrate to the jury the witness’s bias.” Id. at 994-97. Worley extended the Boecher rule to “allow discovery of the financial relationship between law firms and treating physicians.” Worley, 228 So. 3d at 23. Unfortunately for the defense, the decisions in this line of cases have strongly favored plaintiffs, and the recent decisions of Dodgen v. Grijalva and Younkin v. Blackwelder are no different.
The issue of the discoverability of a defendant’s financial relationship with an expert witness was considered by the Court in Dodgen v. Grijalva, No. SC19-1118 (Fla. 2021). The plaintiff, below, Grijalva, sought discovery from the defendant and petitioner, Dodgen, concerning the financial relationship, if any, between Dodgen’s nonparty liability insurer and his expert witnesses. Dodgen moved for a protective order, which the trial court denied, refusing to extend the rationale of Worley, and ordered Dodgen to produce the discovery. The trial court did not find that the holding in Worley, that the financial relationship between a plaintiff’s law firm and treating physicians is never discoverable, applied to the financial relationship between Dodgen’s expert witnesses and his liability insurer. Dodgen, 281 So. 3d at 490-92. The distinction made by the trial court was that treating physicians are not hired experts. Id. Dodgen filed a petition for writ of certiorari in the Fourth District Court of Appeal, reasoning that Worley must equally apply to defendants and that “the financial relationship between a defendant’s law firm or insurance company and expert witnesses [must] no longer [be] discoverable.” Id. The Fourth District Court of Appeal denied this petition, affirming the trial court’s reasoning that Worley did not apply, but the court did hold that “the discovery laws in this context have resulted in disparate and possibly unfair treatment of plaintiffs and defendants.” Id.
On the same day it decided Dodgen, the Florida Supreme Court decided Younkin v. Blackwelder, No. SC19-385 (Fla. 2021). In Younkin, the plaintiff requested certain information regarding the financial relationship between the defendant's law firm and the defense's medical expert, and the defendant moved for a protective order that was denied by the trial court. Id. The defendant filed a petition for writ of certiorari, which was denied by the Fifth District Court of Appeal, holding that the trial court’s order was consistent with the Fifth District’s earlier decision in Vazquez v. Martinez, 175 So.3d 372, 374 (Fla. 5th DCA 2015) (discovery of the doctor/law firm relationship or doctor/insurer relationship is allowed).
With both Dodgen and Younkin, the Supreme Court did not address whether Worley, stating that “[t]he holding of Worley should be reexamined only in a case in which it is actually at issue.” Dodgen, at 15.
However, the dissent by Justice Polston in Younkin, which echoed the opinion of Fifth District Judge Brian Lambert, offered an example that illustrates the problematic and uneven application of Worley between plaintiffs and defendants:
[U]nder Worley, 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 exam] 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…. Nevertheless, this appears to be the present status of the law.
That the Supreme Court has recognized that a solution is needed in this area is promising. However, maybe the way to fix this problem is not an evenhanded approach. Perhaps the laws will strike a balance by allowing greater discovery by defendants into how medical treatment is funded, a systemic problem in personal injury matters that has led to an explosion in the cost of medical treatment, which in turn has resulted in overvaluation of damages and, in some cases, nuclear verdicts. We will continue to monitor changes in the law in this area, and keep you apprised of any significant developments.
Florida Supreme Court Rules that the Financial Relationship Between Defense and Expert Witness is Discoverable