More Worley ball

FLORIDA LAW WEEKLY

VOLUME 46, NUMBER 26

CASES FROM THE WEEK JULY 2, 2021

UNDER WORLEY, DISCOVERY DIRECTED TO A PARTY’S RELATIONSHIP WITH AN EXPERT IS FAIR GAME, BUT DISCOVERY IMPLICATING ATTORNEY-CLIENT PRIVILEGE IS NOT

Hidalgo v. Citizens Property Insurance Corp., 46 Fla. L. Weekly D1443 (Fla. 3rd DCA June 23, 2021):

The trial court ordered the plaintiffs’ engineer expert to produce financial and business record discovery. The discovery sought included a list of cases with, and money received from, the law firm representing the plaintiff or any attorney associated with that law firm for the three prior years.

The court advised that discovery directed to a party’s relationship with an expert witness is fair game under Worley. On the other hand, discovery that implicates attorney-client privilege is not. Worley held that attorney-client privilege precludes defense counsel from asking a plaintiff whether his or her attorney referred the plaintiff to a particular doctor for treatment.

Here, the plaintiffs argued that the expert discovery fit within the impermissible attorney-client category set forth in Worley. The court disagreed. It noted that Worley only held that the attorney-client privilege bars compelled disclosure of whether the plaintiffs’ lawyer referred the plaintiff to a treating physician.

The court did not grant the petition based on Worley. Pursuant to Fla. R. Civ. P. 1.280(b)(5)(A)(iii), an opposing party may seek discovery regarding an expert as to (1) compensation; (2) percentage of work performed for plaintiffs and defendants; (3) identity of other cases within a reasonable time in which the expert has testified; and (4) an approximation of the expert’s involvement as an expert witness, based on time spent, percentage of time, or percentage of income earned while serving as an expert witness.

Any additional discovery to explore the bias of an expert witness requires a showing of “the most unusual or compelling circumstances.” Because the record in this case demonstrated no such circumstances, and the order contained no such findings, the court granted the petition to the extent that it compelled production of documents not enumerated in Rule 1.280(b)(5)(A).

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COURT CORRECTLY FOUND PERSONAL JURISDICTION EXISTED, BUT FAILED TO DO THE PROPER ANALYSIS OF FORUM NON CONVENIENS UNDER KINNEY-- REVERSAL REQUIRED FOR FURTHER CONSIDERATION

The Sports Channel v. Tabib, 46 Fla. L. Weekly D1474 (Fla. 3rd DCA June 23, 2021):

The court affirmed the order denying the defendant’s motion to dismiss for lack of personal jurisdiction, finding that the defendant did not need to be physically present in Florida to commit a “tortious act” under the long arm statute, and that committing a tortious act can occur when a non-resident defendant posts electronic communications on a website which is accessible and accessed in Florida.

However, that ruling did not address the defendant’s motion seeking to dismiss on the basis of forum non conveniens. The trial court failed to conduct such an analysis.

The Florida Supreme Court has made it clear that in a case involving a U.S. resident-plaintiff and a foreign defendant, there is a high burden on the defendant to overcome the presumption of the plaintiff’s U.S. choice of forum. However, that does not relieve the trial court of its responsibility to assess the requisite Kinney factors to determine whether dismissal is appropriate.

The court reversed and remanded with directions to conduct such an analysis.

COURT IN TOBACCO CASE ADMONISHES AGAINST IMPROPER COMMENTS PLAINTIFF’S COUNSEL USED REFERENCING SCHINDLER’S LIST AND 1984; CONCURRENCE URGED TRIAL JUDGES TO BE MORE VIGILANT IN ADDRESSING ATTORNEY MISCONDUCT

R.J. Reynolds v. Kaplan, 46 Fla. L. Weekly D1482 (Fla. 4th DCA June 23, 2021):

In this tobacco case, the Fourth District denied a motion for new trial en banc, but issued a revised written opinion stressing to trial judges the importance of curbing improper closing arguments designed to appeal to the emotions and passions of jurors. As the court wrote “inflammatory improper arguments must be stopped to maintain public confidence in our system of justice.”

The court then explained that trial judges have the option of using indirect civil contempt, and monetary sanctions for repeated violations of court rulings.
As Judge Klingensmith colorfully explained in his concurrence, “there is no education in the second kick of a mule,” explaining that he hoped this case provided the fifth and hopefully final kick to emphatically deliver the majority’s message to the trial counsel in that case, and to trial judges more generally, that the court’s expectations are clear and its tolerance should not be expected in the future.

SPOILER alert: Next week’s WIT will reveal it may take SIX times (and sadly, the client there DOES get punished with a reversal unlike this one who skirted by with an affirmance).