Dodge'n Expert Bias Discovery Issues Raised In Worley

• Published date: 26 October 2021
• Subject Matter: Insurance, Litigation, Mediation & Arbitration, Insurance Laws and Products, Disclosure & Electronic Discovery & Privilege, Trials & Appeals & Compensation
• Law Firm: Butler Weihmuller Katz Craig LLP
• Author: Abraham Mohammad Shakfeh and Vincent Fernandez

Expert witnesses are a critical part of litigation. A good expert can properly assess a case, help position a case for settlement and provide helpful testimony at trial. Like all witnesses, an expert witness' bias may be discovered. This includes the frequency with which a firm uses a particular expert. See Allstate Insurance Co. v. Boecher, 733 So. 2d 993, 994 (Fla. 1999) (holding that "discovery requests . . . propounded directly to a party regarding the extent of that party's use of and payment to a particular expert" were permissible).

In Boecher, the Florida Supreme Court authorized such discovery because it is "directly relevant to a party's efforts to demonstrate to the jury the witness's bias." Id. at 997.

Interestingly, some of the state district courts had "extended Boecher to allow discovery of the financial relationship between law firms and treating physicians." See Worley v. Cent. Florida Young Men's Christian Ass'n, Inc., 228 So. 3d 18, 23 (Fla. 2017).

The Court in Worley disagreed with the reasoning of those district courts, concluding "that the relationship between a law firm and a plaintiff's treating physician is not analogous to the relationship between a party and its retained expert." Id.

The Worley Court reasoned that, whereas the plaintiff in Boecher sought discovery from the other party, Allstate Insurance, the plaintiff's law firm in Worley was not a party to the litigation. Id.

Stated more plainly, Worley does not stand for the proposition that a plaintiff's treating physician who is retained as a testifying expert may never be subjected to bias discovery. Rather, 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." Id. at 24. (Noting that the credibility of the treating physician at issue could be attacked in certain ways that do not require discovery into the possible relationship between the physician and the plaintiff's law firm as such discovery would require the production of communications and materials that enjoy the protection of attorney-client privilege).

This brings us to Dodgen v. Grijalva, 281 So. 3d 490 (Fla. 4th DCA 2019) - a case which involves a discovery dispute in an automobile negligence case in which the plaintiff, Respondent Grijalva, seeks to discover from the defendant, Petitioner Dodgen, the financial relationship, if any, between Dodgen's nonparty liability insurer and his...