Florida Supreme Court Continues To Allow Asymmetric Discovery Between An Insured Defendant's Retained Expert And An Injured Plaintiff's Health Care Provider

• Published date: 23 February 2022
• Subject Matter: Insurance, Litigation, Mediation & Arbitration, Insurance Laws and Products, Trials & Appeals & Compensation
• Law Firm: Wilson Elser Moskowitz Edelman & Dicker LLP
• Author: Mr Eric Neiberger

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.

Background

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]...