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Florida Supreme Court rules that it is not a departure from the essential requirements of law to permit discovery by plaintiff regarding the financial relationship between a defendant’s nonparty insurer or law firm and an expert witness retained by the defense

On October 14, 2021, in Dodgen v. Grijalva, No. SC19-1118, the Florida Supreme Court addressed a certified question which has been raised repeatedly in lower courts since the Court’s ruling in Worley v. Central Florida Young Men’s Christian Ass’n, 228 So. 3d 18 (Fla. 2017), i.e., whether it is a departure from the essential requirements of law to permit discovery regarding the financial relationship between a defendant’s nonparty insurer and an expert witness retained by the defense? The Court answered the question in the negative, and because it concluded that Worley simply did not apply to the question at issue, the Court declined to readdress the holding or analysis adopted in Worley. The narrowly certified conflict addressed in Worley was whether the attorney-client privilege protects a party from being required to disclose that his or her attorney referred the party to a physician for treatment. The Court acknowledged that Worley went beyond the certified conflict to rule more broadly that “the attorney-client privilege protects . . . a law firm from producing documents related to a possible referral relationship between the firm and its client’s treating physicians.” However, the Court noted that Worley was clearly decided in a “plaintiff-only” context. The Court stated: “[e]ven if it can be argued that a compulsory medical examiner should be viewed as analogous to a treating physician, nothing in Worley suggests its decision was intended to apply to any witnesses other than those “attempting to make [their] patient[s] well.” The Court noted that another case, Springer v. West, 769 So. 2d 1068, 1069 (Fla. 5th DCA 2000), dictated the decision in this case. In Springer, the Fifth DCA denied the certiorari petition of a defendant who had been ordered by the trial court to answer interrogatories regarding the relationship between his trial expert and his liability insurer. Springer held that the financial relationship between a defendant’s nonparty insurer and the defense experts is discoverable, while additionally concluding that the discovery rules should be applied evenhandedly to both parties. The Florida Supreme Court indicated that “we see no basis for revisiting the rule laid down by the Springer court,” noting that the question whether Worley was wrongly decided was not properly before the Court and that Worley should be reexamined only in a case in which it is at issue.

Also on October 14, 2021, in Youngkin v. Blackwelder, No. SC19-385, the Florida Supreme Court came to the same conclusion in a case addressing the discoverability of the financial relationship between a defendant’s nonparty law firm and an expert witness retained by the defense, concluding that its decision in Dodgen was controlling on this issue as well.

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