BRENT A. DODGEN, Petitioner,
KAITLYN P. GRIJALVA, Respondent.
final until disposition of timely filed motion for rehearing.
Petition for writ of certiorari to the Seventeenth Judicial
Circuit, Broward County; Sandra Perlman, Judge; L.T. Case No.
R. Gooden of Boyd & Jenerette, P.A., Jacksonville, for
Douglas F. Eaton of Eaton & Wolk, P.L., Miami, for
Dodgen, a defendant in a pending automobile negligence case,
filed this petition for writ of certiorari challenging a
circuit court order that denied his motion for protective
order. The order required him to provide discovery on the
relationship between (1) his insurer and expert witnesses,
and (2) the law firm defending him and the expert witnesses,
for the last three years. It called for discovery on payments
made to the expert witnesses and the number of times each
expert was retained.
scheduled trial date was near, we denied the petition by
order with a provision that an opinion would follow. This
opinion explains the basis for that denial and suggests the
need for further consideration of the disparate treatment of
plaintiffs and defendants in the discovery arena. Further, we
join the fifth district in certifying a question as one of
great public importance on this point.
petition, Dodgen challenged the circuit court order on
multiple grounds, claiming that it compelled discovery from
nonparties, invaded privacy rights of those nonparties,
exceeded the scope of expert witness discovery, invaded
attorney-client privilege and was not reasonably calculated
to lead to the discovery of admissible evidence. After this
court issued an order to show cause, respondent Kaitlyn
Grijalva, the plaintiff, withdrew her discovery request as to
the defendant's law firm. This left for review the
circuit court's order compelling discovery from the
defendant's insurer and the expert witnesses.
discovery was originally sought pursuant to Allstate Ins.
Co. v. Boecher, 733 So.2d 993, 997 (Fla. 1999) (ruling
that information on the frequency of an expert witness's
testimony and payments to the expert was discoverable from
the insurer, a party defendant). Boecher was applied
in Springer v. West, 769 So.2d 1068, 1069 (Fla. 5th
DCA 2000), where the plaintiff sought information on the
relationship between the defending liability insurer, a
nonparty, and the trial expert.
address petitioner's argument that after Worley v.
Central Florida Young Men's Christian Ass'n, 228
So.3d 18 (Fla. 2017), the financial relationship between a
defendant's law firm or insurance company and expert
witnesses is no longer discoverable. We reject that
contention because Worley was not broadly written to
cover discovery sought from the defense side of a case.
held that the financial relationship between a
plaintiff's law firm and treating physicians was not
discoverable. Id. at 22-23. It ruled that whether a
plaintiff's attorney referred a client to a physician for
treatment was protected by attorney-client privilege.
Worley distinguished Boecher on several
grounds, including that Boecher dealt with experts
hired for litigation, rather than treating physicians.
Treating physicians acquired their expert knowledge for
treatment rather than litigation purposes. Their testimony
concerned their own medical treatments rather than their
opinions on the performance of others. Id. at 23
(citing Fittipaldi USA, Inc. v. Castroneves, 905
So.2d 182, 186 (Fla. 3d DCA 2005)). With these distinctions,
the court expressed its concern that discovery of the
relationship between the law firm and treating physician
"would have a chilling effect on doctors who may refuse
to treat patients who could end up in litigation out of fear
of becoming embroiled in the litigation themselves."
Id. at 26. Worley also distinguished
Boecher because the law firm from which the
discovery was sought was not a party to the case, as was the
insurer in Boecher. Id. at 23.
petitioner in Younkin v. Blackwelder, 44
Fla.L.Weekly D549 (Fla. 5th DCA), rev. granted, No.
SC19-385, 2019 WL 2180625 (Fla. May 21, 2019), seized on the
latter distinction. He argued that post-Worley, a
nonparty law firm provided by an automobile insurer to
represent a defendant should not be required to provide
discovery on how frequently it used an orthopedic surgeon who
performed a compulsory medical examination of the plaintiff
and about the fees paid to that surgeon. The fifth district
disagreed, recognizing that the existing law protected
injured plaintiffs from having to disclose information on
relationships between doctors and their counsel, but not
defendants. In so ruling the court observed the
"seemingly disparate treatment in personal injury
litigation between plaintiffs and defendants regarding
disclosure of this type of relationship." Id.
at D549-50 (citing State Farm Mut. Auto. Ins. Co. v.
Knapp, 234 So.3d 843, 845 n.1 (Fla. 5th DCA 2018)). The
court therefore found petitioner's argument that
"what is good for the goose is good for the gander"
to be compelling, and certified the question of great public
importance as follows:
WHETHER THE ANALYSIS AND DECISION IN WORLEY SHOULD
ALSO APPLY TO PRECLUDE A DEFENSE LAW FIRM THAT IS NOT A PARTY
TO THE LITIGATION FROM HAVING TO DISCLOSE ITS FINANCIAL
RELATIONSHIP WITH EXPERTS THAT IT RETAINS FOR PURPOSES OF
LITIGATION INCLUDING THOSE THAT PERFORM COMPULSORY ...