Dodge’n Expert Bias Discovery Issues Raised in Worley
October 22, 2021
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 expert witnesses.
In denying defendant’s Motion for Protective Order, the Fourth District Court of Appeals declined to extend the holding in Worley, that the financial relationship between a plaintiff’s law firm and treating physicians is never discoverable, to the financial relationship between Dodgen’s expert witnesses and his liability insurer, and between those witnesses and his defense law firm. Dodgen, 281 So. 3d at 490-92. The reasoning was that treating physicians are not hired experts. Id.
After being ordered to provide the discovery, Dodgen filed a petition for writ of certiorari in the Fourth District Court of Appeal, reasoning that Worley must equally apply to defendants, with the result being that “the financial relationship between a defendant’s law firm or insurance company and expert witnesses is no longer discoverable.” Id. The Fourth District denied this petition, reasoning that Worley did not apply to the discovery dispute. However, in doing so, the Fourth District acknowledged that “the discovery laws in this context have resulted in disparate and possibly unfair treatment of plaintiffs and defendants.” Id.
Justice Polston, in a related dissent, recounted the example given by Judge Lambert of the Fifth District, regarding the unequal treatment brought on by Worley,
[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 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. See § 90.608(2), Fla. Stat. (2016). Nevertheless, this appears to be the present status of the law.
Younkin v. Blackwelder, No. SC19-385, slip op. at 10-11(Fla. October 14, 2021) (citing Younkin v. Blackwelder, 44 Fla. L. Weekly D549, D550 (Fla. 5th DCA Feb. 22, 2019).
The Florida Supreme Court took up Dodgen and addressed the specific question of, “[w]hether it is a departure from the essential requirements of law to permit discovery regarding the financial relationship between a defendant’s nonparty insurer and an expert witness retained by the defense?” and answered the same in the negative. Dodgen v. Grijalva, No. SC19-1118, slip op. at 2-3 (Fla. October 14, 2021).
In upholding the decision of the Fourth District, the Supreme Court noted that the discovery issue in Worley was distinguishable from that in Dodgen as Worley was not broadly written to cover discovery sought from the defense side of a case. Dodgen, slip op. at 11.
The High Court elaborated that, Worley does not speak to the discoverability of the financial relationship between a defendant’s nonparty insurer and the defendant’s experts, thus the discovery order at issue did not violate a “principle of law” that was “clearly established” by Worley. Id. at 12.
The Court noted that the Fourth District Court of Appeals correctly relied on the Fifth District’s decision in Springer v. West, 769 So. 2d 1068, 1069 (Fla. 5th DCA 2000), which held,
Where an insurer provides a defense for its insured and is acting as the insured’s agent, the insurer’s relationship to an expert is discoverable from the insured. To hold otherwise would render Boecher meaningless in all but a small class of cases. Similarly, a defendant may question a plaintiff about any relationship between his or her attorney and the plaintiff’s trial expert. In both cases, the information sought is relevant to the witness’s bias and will enhance the truth-seeking function and fairness of the trial, as intended by Boecher.
Springer, 769 So. 2d at 1069.
The Supreme Court did not address whether Worley was wrongly decided, and did not take up the issue of the post-Worley 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. The Court concluded by stating that “[t]he holding of Worley should be reexamined only in a case in which it is actually at issue.” Dodgen v. Grijalva, No. SC19-1118, at 15 (October 14, 2021).
That same day, the Florida Supreme Court refused to address the fairness of Worley in Younkin v. Blackwelder, No. SC19-385 (Fla. October 14, 2021).
In Younkin, after the plaintiff requested certain information regarding the financial relationship between the defendant’s law firm and the defense’s medical expert, the defendant moved for a protective order, but the trial court denied the motion. Younkin, 44 Fla. L. Weekly at D549. The defendant then filed a petition for writ of certiorari in the Fifth District. The Fifth District denied the petition, concluding 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), which held that discovery of the doctor/law firm relationship or doctor/insurer relationship is allowed. Younkin, 44 Fla. L. Weekly at D549-D550.
In Younkin, the Fifth District concluded that Worley, which held that the attorney-client privilege protects a plaintiff and the plaintiff’s nonparty law firm from having to disclose certain information involving the plaintiff’s treating physicians, “did not implicitly overrule Vazquez or other similar cases.” Younkin, 44 Fla. L. Weekly at D550.
However, like the Fourth District in Dodgen, the Fifth District in Younkin noted that the Worley was not being applied in an evenhanded manner. Id. Nevertheless, the Majority upheld the decision of the Fifth District stating that the district court did not depart from the essential requirements of the law as set out under Vazquez. Younkin, slip op. at 4-6. The Majority also recounted its reasoning in Dodgen and refused to consider the legitimacy of Worley, as it found that Worley was inapplicable to the facts at issue in Younkin. Id.
For now, it would appear that the Supreme Court will not review the effects of Worley or whether to recede from it until another Worley-like case, challenging the reasoning of the case is before it. Younkin, slip op. at 5.
For any further questions, please contact Abraham Shakfeh or Vincent Fernandez.
