Insurers’ Payments to Expert Witnesses Are Discoverable, Florida Supreme Court Says

Florida insurance companies and their lawyers must disclose their financial arrangements with expert witnesses when asked to do so in litigation, the state Supreme Court has decided.

In two decisions last week, the high court appeared to underscore previous court decisions that require insurers and defense law firms, when asked during the discovery process in lawsuits, to show their payments to physician witnesses. Insurance defense attorneys, though, said the court sidestepped long-simmering questions about disparity between what information plaintiffs and defense teams can request in discovery, and said the court’s action could potentially embolden plaintiffs’ lawyers to demand more financial information from insurers.

“It’s kind of a game changer. Plaintiffs get some types of discovery that the defense does not,” said Miami attorney Elaine Walter, a member of the Florida Defense Lawyers Association.

In Brent Dodgen vs. Kaitlyn Grijalva, an automobile accident negligence case, the court found that an insurer’s payments to an expert witness, unlike a plaintiff’s attorney’s relationship with a treating physician, is discoverable under Florida law and case law. The court acknowledged — but declined to rule on — concerns raised by the state’s 4^th District Court of Appeal about the “uneven playing field skewed in favor of plaintiffs when it comes to the discovery of financial-bias relationships between the parties’ medical experts and nonparty representatives.”

One of the plaintiff’s attorney in the case said the concerns are overblown: The high court was simply following its own precedent in allowing discovery of insurers’ payments.

“The court is just continuing on the same path it’s been on for 20 years,” said Grijalva’s attorney, Brett Rosen, of Miami.

The case stems from a 2015 accident in Southwest Ranches, Florida, not far from Fort Lauderdale. Grijalva was seriously injured and sued Dodgen for recklessly driving his pickup truck and causing the collision. After the defense hired three physicians as expert witnesses, Grijalva’s attorney moved to discover the financial relationship between the doctors and Dodgen’s insurer, Allstate Fire and Casualty.

Dodgen’s attorney, Marc Shechter, argued at the trial court that such information would have a prejudicial impact on the jury, would “improperly imply the litigious nature of the defendant” and would “impermissibly implicate insurance.” He contended that case law, established in a 2017 court ruling, overruled a 1999 decision and barred the disclosure of the insurer-expert relationship.

The Broward County Circuit Court held in favor of Grijalva and ordered the information to be divulged. Dodgen’s attorney then asked the appellate court for that part of Florida, the 4^th District Court of Appeal, to block the trial court’s order.

The 4^th DCA ruled against Dodgen, but also asked the state Supreme Court to weigh in on the discovery question.

The Supreme Court’s per curiam opinion examined more than two decades of court rulings. In the 1999 decision known as Allstate vs. Boecher, the high court established that the relationship between a party to a lawsuit and that party’s expert witness was discoverable. A number of appeal courts have since held that the Boecher ruling also applied to law firms’ agreements with plaintiffs’ treating physicians.

In 2017, in Worley vs. Central Florida YMCA, the state Supreme Court moved to clarify that, and emphasized that a plaintiff’s lawyer’s financial arrangement with treating physicians could never be divulged in the discovery process, thanks in part to the doctrine of attorney-client privilege. Lawyers are not parties to a lawsuit and treating physicians are different from expert witnesses, the Worley decision found.

The 4^th DCA noted that Worley did not apply in the Dodgen case, but the court also said it “has resulted in the disparate treatment of plaintiffs and defendants.”

The Florida Supreme Court gave a nod to that concern but said that this was not the place to rehash the Worley decision. The justices said that another court ruling, known as Springer, penned in 2000, backs up the notion that an insurer’s relationship with expert witnesses can be disclosed.

“The circuit court here did not depart from the essential requirements of law in permitting discovery related to the financial relationship between Dodgen’s insurer and defense experts,” the court wrote.

Justice Ricky Polston dissented, saying that he would recede from the Worley decision “and require disclosures equally from plaintiffs and defendants.”

Walter, who is chair of the appellate practice group at the Miami-based Boyd Richards Parker & Colonelli firm, said it is “startling” that the court did not review the discovery-disparity question. Despite that, there is a bright spot, she said. Some Florida courts have begun to scrutinize discovery requests more carefully in recent cases. She hopes that the Supreme Court will now address the disparity issue by amending the rules of civil procedure.

In another decision posted the same day, Steven Younkin vs. Nathan Blackwelder, the Supreme Court held that the Worley precedent does not extend to defense lawyers. The appeal from the 5th DCA had raised concerns that “that the law in this area is not being applied in an even-handed manner to all litigants.”

The president of the Florida Justice Reform Institute, which filed an amicus brief in both cases on behalf of the U.S. Chamber of Commerce, said that the Worley decision had created “an untenable situation in which lower courts are treating plaintiffs and defendants differently when it comes to who may engage in financial bias discovery, undermining the fundamental fairness of the civil justice system.”

Unfortunately, Institute President William Large wrote in a summary of the cases, the state Supreme Court declined to rectify the disparity.

Doug Eaton, of Miami, who represented Grijalva in the appeal, said the concerns that plaintiffs’ lawyers may now be emboldened to use the disparity to their advantage or to pursue more discovery are unfounded.

“All these two cases did was to re-affirm the status quo,” Eaton said. “All Dodgen did was re-affirm the law that has been in place since Boecher was issued in 1999. It does not expand the plaintiff’s ability to obtain discovery in any way. Also, defendants are able to obtain the same discovery of plaintiff’s attorney’s relationships with expert witnesses that they frequently hire.”

On the original question of how much an insurance carrier pays its expert doctors, Walter agreed that such information may not be so eye-opening or beneficial to a plaintiff. Most expert witnesses, for plaintiffs and defense, charge hefty fees when asked to write a report or testify.

“No, there’s no reason to think that insurance companies pay any more to their experts than any other party does,” Walter said.

Topics Florida Carriers