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Fla. High Court Passes On Discovery Disparity Question

By Nathan Hale

Law360 (October 14, 2021, 5:12 PM EDT) -- The Florida Supreme Court on Thursday affirmed denials of two personal injury defendants' bids to block disclosure about their attorneys' or insurers' financial relationships with medical expert witnesses, but the justices declined to address the lower courts' questions of whether a 2017 ruling has unfairly resulted in defendants being treated differently than plaintiffs.

Over the dissent of one of its members, the state's highest court stuck to a narrow approach in reviewing the two cases that came before it on questions certified by the Fourth and Fifth Districts. Both appeals courts asked whether the Supreme Court's holdings in Worley v. Central Florida Young Men's Christian Association, which shields details of the financial relationship between a plaintiff's law firm and treating physicians, should be extended to the defense side.

In both cases — Younkin v. Blackwelder, out of the Fifth District, and Dodgen v. Grijalva, out of the Fourth — the Supreme Court ruled 6-1 that because Worley was distinguishable from the situation at hand, it does not apply and the lower courts had properly denied the defendants Steven Younkin's and Brent A. Dodgen's requests for protective orders.

The majority also said that because Worley was not applicable, it declined to address the analysis in that case and consider whether to recede from that decision, as argued for by the defendants and Justice Ricky Polston in his dissenting opinions.

"Our certified-question jurisdiction should not be used — as the dissent proposes — to recede from case law when doing so would have no impact on the issue properly before this court," the majority said. "Certified question jurisdiction is not advisory opinion jurisdiction."

During oral arguments in September 2020, Kansas R. Gooden of Boyd & Jenerette PA, representing both Younkin and Dodgen, told the justices that Worley had "upended" the law in personal injury litigation.

The decision has not been applied evenhandedly on both sides, she said, resulting in plaintiffs essentially using it "as a sword and a shield," refusing to respond to discovery requests about their expert witnesses while seeking "a ton" of information on the financial relationships between defendants' counsel or insurer and their expert witnesses, as well as their retention of those witnesses in other cases.

"The jury's only left with hearing impeachment on one side of the case. And as I stated earlier, these cases are truly battle-of-the-expert cases," Gooden said. "It comes down to credibility — who does the jury believe? And if the jury is only hearing that the defense's doctors are the ones being paid and have a financial interest, that always starts the defense behind the eight ball."

Gooden suggested that to address the "havoc" she said Worley has created, the Supreme Court could either overturn Worley, rule that the reasoning in Worley applies to all nonparties on both the plaintiffs' and defendants' sides, or limit financial bias impeachment in these cases to certain topics laid out in Florida Rules of Civil Procedure 1.280.

But the Supreme Court's majority said in Thursday's opinions that it had narrowly framed the issue before it in Worley and that the decision "hinged on the existence of the treating physician relationship," which it noted never exists on the defense side.

The discovery rulings in both cases involved other information — about the relationships between the defendants' law firm or insurer and expert witnesses, including payments to the experts and the number of times each had been retained — unrelated to the plaintiff's treating physician.

"The petition for certiorari challenged no other discovery ruling. At bottom, then, the dissent takes issue not with the discovery ruling properly before this court, but with some other discovery ruling that might be rendered in another case," the majority said.

In his dissent in Younkin, Justice Polston said he believed the "larger remaining issue of unequal treatment under the law" is properly before the court, adding that the majority failed to reach the petitioner's request for an "extension, modification, or reversal of existing law," which was raised as an alternative to barring discovery.

Justice Polston said the court has "previously recognized that unequal treatment in discovery is not appropriate" and also has found that district courts should have some flexibility and discretion to right miscarriages of justice.

"If district courts of appeal are afforded the flexibility to correct serious errors resulting in the miscarriage of justice, then this court certainly is as well," he said.

Doug Eaton of Eaton & Wolk PL, who represents Kaitlyn P. Grijalva, the plaintiff against Dodgen, applauded the Supreme Court for exercising "appropriate judicial restraint in declining to address legal questions that were not at issue in either case."

"As we have maintained from the outset, we disagree with the suggestion that Worley has resulted in disparate treatment of plaintiffs and defendants," he said. "Worley addressed only a discreet group of hybrid witnesses that have no equivalent on the defense side of the ledger," he said.

Eaton noted that both plaintiffs and defendants may obtain financial bias discovery into the relationship between nonparty law firms and the experts they frequently retain under the Supreme Court's ruling in Allstate Insurance Co. v. Boecher.

And he said that while there are reasonable arguments for allowing a defendant to obtain financial bias discovery regarding these hybrid witnesses, he does not believe disparate treatment is one of them.

"These cases were never the proper vehicle to address the issue, because neither involved the hybrid witnesses at issue in Worley. Instead, these cases only involved discovery that remains available to both parties," Eaton added.

Bryan Gowdy, who filed an amicus brief for the Florida Justice Association, the state's plaintiffs' bar, said the ruling recognized a critical distinction between treating physicians and physicians who are hired to be expert witnesses.

"The ruling is not about disparate treatment of plaintiffs and defendants. The distinction allows juries and judges to make informed and fair decisions," he said.

But William W. Large, president of the Florida Justice Reform Institute, which filed amicus briefs in support of Younkin and Dodgen, called on defense attorneys to follow up on the disparity question.

"The disparate treatment of the discovery of defendants' referral relationships with physicians in civil cases is a miscarriage of justice," he said. "Defense counsel across the state need to preserve this issue on appeal and take an appropriate case back up to the court."

Counsel for Younkin and Dodgen and for Blackwelder did not immediately respond to requests for comment Thursday.

Younkin is represented by Kansas R. Gooden and Geneva R. Fountain of Boyd & Jenerette PA.

Blackwelder is represented by Mark A. Nation and Paul W. Pritchard of the Nation Law Firm.

Dodgen is represented by Kansas R. Gooden and Kevin D. Franz of Boyd & Jenerette PA.

Grijalva is represented by Douglas F. Eaton of Eaton & Wolk PL.

The cases are Younkin v. Blackwelder, case number SC19-385, and Dodgen v. Grijalva, case number SC19-1118, in the Supreme Court of Florida.

--Editing by Peter Rozovsky.

Update: This story has been updated to include additional comments.

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