The goose is not the gander

FLORIDA LAW WEEKLY

VOLUME 46, NUMBER 41

CASES FROM THE WEEK OCTOBER 15, 2021

PLAINTIFFS MAY SEEK DISCOVERY ABOUT THE FINANCIAL RELATIONSHIP BETWEEN A DEFENDANT’S NON-PARTY LAW FIRM AND A DEFENDANT’S EXPERT WITNESS—HOWEVER, SIMILAR INFORMATION REGARDING PLAINTIFFS’ LAW FIRMS AND THEIR CLIENTS’ TREATING PHYSICIANS IS STILL PROTECTED BY ATTORNEY-CLIENT PRIVILEGE

Younkin v. Blackwelder, 46 Fla. L. Weekly S291 (Fla. October 14, 2021):

After many District Courts have sought an answer to what defendants have claimed is an unfair rule, the Florida Supreme Court has now held that Worley (holding that the attorney-client privilege protects plaintiffs and their non-party law firms from having to disclose certain information involving the relationship between those attorneys and the plaintiff’s treating physicians) does not apply to protect discovery of information about the relationship between a defendant’s non-party law firm and the defendant’s expert witnesses.

The plaintiff here requested certain information regarding the financial relationship between the defendant’s law firm and the defense’s medical expert. The defendant moved for protective order, which the trial court denied. The Fifth District denied certiorari to the defendant, concluding that even though Worley could not be applied even-handedly to all litigants (because of the privilege issue), it was still the law. The court then certified a question of great public importance about whether it should be.

The Supreme Court posed the question as follows:

Whether it is a departure from the essential requirements of law to permit discovery regarding the financial relationship between a defendant’s non-party law firm and an expert witness retained by the defense?

It answered its question in the negative.

The dissent proposed to recede from Worley, noting that it causes unequal treatment. The dissent opined that Worley “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, and creates uneven-handed treatment of plaintiffs and defendants. Notably, six out of the seven justices signed on to the majority opinion.

THE SUPREME COURT REITERATED ITS RULING THAT IT IS NOT A DEPARTURE FROM THE ESSENTIAL REQUIREMENTS OF LAW TO ALLOW DISCOVERY ABOUT THE FINANCIAL RELATIONSHIP BETWEEN A DEFENDANT’S NON-PARTY INSURER AND AN EXPERT WITNESS RETAINED BY THE DEFENSE

Dodgen v. Grijalva, 46 Fla. L. Weekly S293 (Fla. October 14, 2021):

This case involved discovery from the defendant regarding the financial relationship between his insurance company and his expert witness (Boecher discovery). After being ordered to provide the discovery, the defendant petitioned for writ of certiorari, which the Fourth District denied, but asked the Supreme Court to resolve whether this decision also resulted in disparate treatment between plaintiffs and defendants under Worley.

The Supreme Court posed the question as it did in Younkin, noting that the defendant in Worley sought discovery in an effort to establish the existence of a referral relationship between the plaintiff’s attorneys and her treating physicians, but did so by asking the plaintiff herself if she was referred to her specialist by her attorneys.

Worley’s analysis turned in part on distinguishing the court’s decision in Allstate v. Boecher, which held that discovery requests propounded directly to a party regarding the extent of that party’s payment to a particular expert were permissible. In Boecher, the Supreme Court authorized the discovery because it was directly relevant to the party’s efforts to demonstrate to the jury the witness’s bias.

In the wake of Boecher, certain decisions have extended that opinion to allow discovery of the financial relationship between law firms and treating physicians. Worley disagreed with the reasoning of those 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.

Worley reasoned that the plaintiff in Boecher sought discovery from the other party, instead of the plaintiff’s law firm which was not a party to the litigation. Further, Worley distinguished treating physicians from experts who had been hired for the purposes of litigation, knowing that treating physicians typically testify concerning their own medical performance on a particular occasion, and not about the performance of another expert.

After distinguishing Boecher, Worley concluded that although the evidence code allows a party to attack a witness’s credibility based on bias, the credibility of the treating physician at issue could be attacked in ways that do not require discovery into a possible relationship between the physician and the plaintiff’s law firm, as that discovery would require the production of communications and materials protected by the attorney-client privilege.

Without getting into the jurisdictional questions addressed in the case, the court again concluded that there was no departure from the essential requirements of law in denying the defendant’s motion for protective order.

RULE 1.190(a) PERMITS A PARTY TO AMEND A PLEADING ONCE AS A MATTER OF COURSE AT ANY TIME BEFORE A DEFENDANT SERVES A RESPONSIVE PLEADING

DeSantis v. FC Lending Sunshine, LLC, 46 Fla. L. Weekly D2180 (Fla. 2^nd DCA October 6, 2021):

Where defendant has filed only a motion to dismiss following the filing of a complaint, the trial court does not have discretion to dismiss the action with prejudice, even if it seems that amending the complaint would be a futile effort.