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 PBCBA BAR BULLETIN 16 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 (561) 684-2500.