PBCBA BAR BULLETINS pbcba_bulletin_JulAug 2019 | Page 16

PERSONAL INJURY CORNER
Muddled State of the Relationship Between an
Attorney and a Testifying Physician
TED BABBITT
Two recent cases have raised the confused
state of the law of what is discoverable
and what is admissible with reference to
an attorney’s relationship with a testifying
physician. Younkin v Blackwelder, 44 Fla. L.
Weekly D549 (Fla. 5th DCA 2019) and Bellezza
v. Menendez , 44 Fla. L. Weekly D630 (Fla. 4th
DCA March 6, 2019) discussed opposite sides
of what appears to be the same coin. Younkin,
supra , was a petition for certiorari asking to
quash a discovery order compelling a defense
lawyer to disclose the financial relationship
between his law firm and an expert witness
utilized for compulsory medical examinations.
The Florida Supreme Court held in Allstate
Ins. Co. v Boecher , 733 So. 2nd 993 (Fla. 1999)
that the frequency of an expert’s testimony
and payment to the expert was discoverable
from the insurer. The defense attorney relied
upon Worley v. Central Florida Young Men’s
Christian Ass’n , 228 So. 3d 18 (Fla. 2017) holding
that the disclosure of the financial relationship
between a parties’ law firm and its expert
witness was no longer discoverable.
The Fifth District recognized that testimony
concerning the financial relationship between
a law firm and a witness can be used to
demonstrate economic ties between the
insurance company or defense law firm and
the witness and thus would be relevant. One of
the bases for the Supreme Court distinguishing
Boecher from its decision in Worley was that
the attorney’s knowledge implicated in Worley
related to the plaintiff’s attorney who was not a
party to the litigation. The defense in Younkin
argued that the same reasoning applied since
the defense firm was not a party to the action.
The apparent inconsistency between Boecher
and Worley was explored in the case of State
Farm Mut. Auto. Ins. Co. v Knapp , 234 So. 2d 3rd
843 (Fla. 5th DCA 2018) which observed that
Worley seems, as a particular matter, to permit
full Boecher discovery only when it is directed
to personal injury defendants and their
insurers, while shielding injured plaintiffs
from having to disclose information about
similar repetitious referral relationships that
exist between doctors and plaintiffs’ counsel
by invoking the attorney client privilege.”
The Fifth District in State Farm v. Knapp, supra,
complained of the unfairness of that position
when it stated:
For example, under 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 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’s
law firm 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, supra at 550. physicians over the course of five years and
the personal relationship between the attorney
and the physicians. The jury returned a very
low verdict and the appeal ensued.
Based upon the current status of the law, the
Fifth District in Younkin denied the petitioner’s
request to quash the trial court discovery order
and thus allowed disclosure of the relationship
with the defense attorney and the CME
physician to go forward but the Court certified
to the Supreme Court the question of whether
the Supreme Court’s decision in Worley should
apply equally to defense law firms concerning
the disclosure of the financial relationship
with experts. The plaintiff next argues that the trial court
erred in excluding evidence that the defendant
law firm had made similar referrals and
had similar financial relationships with the
treating physicians. We agree, but because
we hold that the evidence of the plaintiff’s
attorney’s referral of the plaintiff to his treating
physicians and other payments to those
physicians is protected by attorney-client
privilege, it is unnecessary for us to address
this issue further. Such evidence from the
defendant law firm is similarly protected by
attorney-client privilege.
Less than two weeks after the Fifth District’s
decision in Younkin , the Fourth District filed its
opinion in Bellezza, supra , which was a case in
which the defendants requested information
regarding the financial relationship between
the plaintiff’s attorney and the treating
physicians. Despite objections, the Court
ordered not only that the plaintiff produce
records of all payments between the attorney’s
firm and the treating physicians including
letters of protection but also required the
plaintiff’s attorney’s deposition to be taken
over objections that it invaded attorney client
privilege. The plaintiff then moved to require
the defendants to provide the defendant’s law
firm’s relationship with the same treating
physicians, but the trial court denied that
request. At trial, the plaintiff was examined
extensively about the relationship between
his attorney and his physician testimony
was allowed from the plaintiff’s cousin that
the plaintiff had told him that the attorney
had referred him to his treating physicians.
At trial the plaintiff’s attorney was required
to give testimony as to the amount of money
paid by her firm’s trust account to the treating
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In reversing, the Fourth District pointed out
that the plaintiff’s attorney had been forced to
testify against her own client notwithstanding
the Supreme Court decision in Worley which
precluded the discovery of that kind of
information.
With respect to the trial court’s decision
refusing to allow similar discovery to take
place as to defense counsel, the Court at 632
held
Clearly there is a Conflict between the Fifth
District decision in Younkin and the Fourth
District’s decision in Bellezza since the Fifth
District held that discovery of information
between the defendant law firm and testifying
physicians was discoverable while the Fourth
District opined that such evidence was
protected by attorney client privilege.
To say the least, what is discoverable from
attorneys with respect to their relationship
with treating or examining physician is at
best muddled. Since at least a portion of that
question is now potentially before the Supreme
Court on a certified question, hopefully the law
will be clarified.
NOTE: BECAUSE A NUMBER OF PEOPLE HAVE
REQUESTED COPIES OF PAST ARTICLES, A
COMPILATION OF THESE ARTICLES IS NOW
AVAILABLE TO MEMBERS OF THE PALM
BEACH COUNTY BAR ASSOCIATION, FREE OF
CHARGE, BY CALLING [phone].