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 disclosure of a financial relationship between a plaintiff ' s attorney and their medical expert is no longer discoverable . That Court did not , answer the question of whether the same rule applies regarding 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 its retained expert ." 228 So . 3d at 23 . In Younkin v . Blackwelder , case No . SC19-385 , and Dodgen v . Grijalva , case No . SC19-1118 , 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 heard only one side of the story because they only heard evidence of the financial relationship between the defense and its experts , as opposed to the financial relationship of the plaintiff and their experts ( treating physicians ).
The Supreme Court declined to extend the law in Worley to cover the defense situation , despite a certified question by both the 4th and 5th Districts on this subject . The Supreme Court argued 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 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 Polston who dissented and argued that Worley ’ s application resulted in unequal treatment under the law because the jury was hearing impeachment only referring
to the defendant ' s experts . It should be noted that financial discovery is available from both sides if 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 . 2d 993 ( Fla . 1999 ), is followed which permits financial discovery of experts on both sides , within the bounds of Florida Rule of Civil Procedure 1.280 ( b )( 5 )( A )( iii ).
In affirming the trial courts ’ 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 regarding the type of discovery permitted to show an on-going financial relationship between attorneys and the witnesses .
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PBCBA BAR BULLETIN 17