PERSONAL INJURY CORNER
Discovery of Expert Witness Relationship
TED BABBITT
In Worley v . Central Florida Young Men ’ s Christian Association , 228 So . 3d 18 ( Fla . 2017 ) The Supreme Court ruled that disclosure of the financial relationship between a Plaintiff ’ s attorney and an expert was not discoverable . That case did not answer the question whether the same rule applied with respect to a defense lawyer ’ s relationship with an expert . The Worley case was specifically limited to the relationship between an attorney and a treating physician , as opposed to a retained expert concluding that “ The relationship between a law firm and a Plaintiff ’ s treating physician is not analogous to the relationship between a party and it ’ s retained expert .” 228 So . 3d at 23 . In Younkin v . Black Welder , SC 19- 385 and Dodgen v . Grijalva , SC 19-1118 . The Supreme Court was faced with the question of whether the same rule should apply to a defense lawyer ’ s relationship with his or her hired expert . The argument in those cases was that applying the existing law in Worley , supra . the jury only heard one side of the story because they only heard evidence of a financial relationship between the defense and its experts as opposed to the financial relationship of the Plaintiff and their experts as well .
The Supreme Court declined to extend the law in Worley , supra . to cover the defense situation despite the existence of a certified question by both the 4th and 5th Districts on this subject . The Supreme Court states that the issue raised by the certified question was not properly before the court because it did not apply to the facts of the cases in which it was raised . The Supreme Court explained that in Worley , supra . it had narrowly framed the issues as hinging on the existence of a treating physician relationship with the Plaintiff , which simply does not exist on the defense side . The majority did not agree with Justice Polton who dissented and argued that Worley ’ s application amounted to unequal treatment under the law because the jury was hearing impeachment only
with reference to defense experts .
It should be noted that financial discovery is available from both sides so long as the procedure set forth in Allstate Insurance Company v . Boecher , 705 So . 2d 106 ( Fla . 4th DCA 1998 ) as modified in Allstate Insurance Company v . Boecher , 733 So . 2nd 993 ( FL 1999 ). These decisions permit financial discovery of experts on both sides , within the bounds of Florida Rule of Civil Procedure 1.280 ( b ) 4 ( A ) iii .
In affirming the trial court ’ s denial of the personal injury defendants ' attempts to block disclosure of the relationship between their attorneys ' financial relationships with medical expert witnesses , the Supreme Court has drawn a sharp line distinguishing a treating medical expert witness and a hired expert with respect to the kind of discovery that is permitted to show an ongoing financial relationship between attorneys and the witness .
UPCOMING PBCBA CLE WEBINARS
Thursday , December 2 nd 12:00 P . M . - 1:00 P . M . Live via Zoom Handling Serious Personal Injury and Workers ' Compensation Claims Arising Out of Construction Site Accidents : A Defense and Plaintiff ' s Perspective
Tuesday , December 7 th 12:00 P . M . - 1:00 P . M . Live via Zoom Rehearing , Expert Witness Testimony , Changes to County Court Appeals , New Rule 9.045 , and Appellate Basics
Wednesday , December 8 th 10:30 A . M . - 12:00 P . M . Live via Zoom From the Front Line : Vaccine and Mask Mandates , Policies , and Accommodations for Private and Public Employers
Friday , December 10 th 11:45 A . M . - 1:30 P . M . Live via Zoom What Every Bankruptcy Attorney Should Know About Financial Statements , Balance Sheet , Tax Returns . Its Not a Secret .
Wednesday , December 22 nd 12:00 P . M . - 1:00 P . M . Live via Zoom Monthly Review of Recently Issued Appellate Opinions
PBCBA BAR BULLETIN 20