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Court upholds discovery requests on defense experts

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Supreme Court sealThe relationship between defendants’ insurance companies and the companies’ expert witnesses is discoverable and not subject to the same protections given to plaintiff attorneys who refer clients to medical providers, according to the Florida Supreme Court.

In two separate opinions involving appeals from the Fourth and Fifth district courts of appeal, the court majority on October 14 said its opinion in Worley v. Central Florida Young Men’s Christian Ass’n, 228 So. 3d 18 (Fla. 2017), applied only to plaintiffs and treating medical providers and not defendants. Justice Ricky Polston dissented in both cases, saying Worley was erroneously decided and should be overturned.

In Worley, the court said the defense could not seek discovery information about the relationship between plaintiff attorneys and medical providers to whom they referred to clients, finding that was protected by attorney-client privilege.

The court in per curiam opinions said Worley did not apply in the two new cases and discovery orders to provide information about insurance companies and their experts were proper.

In one case, the plaintiff sought information about the defendant’s insurance company and its relationship with experts as part of an auto accident case. The majority opinion noted that Worley applied narrowly to plaintiff attorneys and treating medical providers.

Worley thus addressed a specific type of plaintiff witness that has no mirror image on the defense side,” the opinion said in part. “Even if it can be argued that a compulsory medical examiner should be viewed as analogous to a treating physician, nothing in Worley suggests its decision was intended to apply to any witnesses other than those ‘attempting to make [their] patient[s] well.’”

“…. Because Worley in no way speaks to the discoverability of the financial relationship between a defendant’s nonparty insurer and the defendant’s experts, the discovery order at issue here did not violate a ‘principle of law’ that was ‘clearly established’ by Worley.”

The opinion said justices recognized the concern that Worley creates an uneven playing field that favors plaintiffs.

“But whether Worley was wrongly decided or whether some other factor has caused the purportedly uneven playing field, is not properly before us. The holding of Worley should be reexamined only in a case in which it is actually at issue. And here, as the Fourth District acknowledged, Worley is not applicable,” the majority said.

Chief Justice Charles Canady and Justices Alan Lawson, Carlos Muñiz, John Couriel, and Jamie Grosshans concurred in the decision. Justice Jorge Labarga concurred in the result only.

Polston argued in his dissent that Worley was wrongly decided and should be overturned.

“The majority focuses on the narrow issue of whether discovery is permitted in this instance and improperly skips over the larger remaining issue of unequal treatment under the law as argued by Petitioner and recognized by the Fifth District,” Polston wrote. “Unlike the majority, I believe this issue is properly before the Court and should be remedied by receding from Worley.”

He quoted Fifth DCA Judge Brian Lambert’s opinion in one of the cases as summing up the problem: “[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.”

Polston said the majority erred by saying any review of Worley would have to be a plenary not certiorari review, noting that Worley itself was a certiorari review.

“[T]his Court did not, as the majority does for the case at bar, review only for whether the district court’s decision departed from the essential requirements of the law. Instead, this Court created new law by concluding ‘that the question of whether a plaintiff’s attorney referred him or her to a doctor for treatment is protected by the attorney-client privilege,’” Polston wrote. “Accordingly, it was this Court in Worley that created the uneven-handed treatment now at issue in this case, and only this Court can recede from its erroneous ruling.”

The majority responded to Polston’s dissent by saying judges decide disputes and do not issue advisory opinions except in rare cases authorized by the Constitution.

“These fundamental principles are not set aside simply because a certified question has been presented. And zeal to correct an error in the law should not be allowed to precipitate the abrogation of fundamental restraints on the exercise of judicial power,” the majority said. “[W]e see no basis for revisiting the established law on the issue presented by this case.”

The court acted in Brent A. Dodgen v. Kaitlyn P. Grijalva, Case No. SC19-1118, and Steven Younkin v. Nathan Blackwelder, Case No. SC19-385.

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