Abbey Adams Logo

Defending Liability, Employment Claims and Appeals Since 1982

  • Skip to main content
  • Skip to primary sidebar
  • Skip to footer

  • Bloglovin
  • Facebook
  • LinkedIn
  • Phone
  • Home
  • Locations
    • Where We Practice in Florida
    • Where We Are Available to Practice In Illinois
  • Practices
  • Blog
  • Attorneys
    • David J. Abbey
    • Jeffrey M. Adams
    • Robert P. Byelick
    • Jennifer J. Kennedy
    • John D. Kiernan (1947-2016)
    • V. Joseph Mueller
    • Elisabeth K. Eubanks
  • Links
  • Contact Us

June 26, 2020 by Jennifer Kennedy

Torts — Discovery — Non-parties — Financial information regarding relationship between non-party insurer and physician-expert — Appeals — Certiorari — Denial

45 Fla. L. Weekly D1466b

Torts — Discovery — Non-parties — Financial information regarding relationship between non-party insurer and physician-expert — Appeals — Certiorari — Denial

MICHAEL TAHAN, Petitioner, v. EMMA MUNOZ, Respondent. 3rd District. Case No. 3D20-497. L.T. Case No. 19-4984. June 17, 2020. On Petition for Writ of Certiorari from the Circuit Court for Miami-Dade County, Maria de Jesus Santovenia, Judge. Counsel: Boyd & Jenerette, P.A., and Kansas R. Gooden and Ian E. Waldick (Jacksonville), for petitioner. Florida Advocates, and Carlos D. Cabrera (Dania Beach), for respondent.

(Before EMAS, C.J., and SCALES and MILLER, JJ.)

(PER CURIAM.) We deny the petition for writ of certiorari. See Worley v. Cent. Fla. Young Men’s Christian Ass’n, 228 So. 3d 18 (Fla. 2017); Villalobos v. Martinez, 44 Fla. L. Weekly D2458 (Fla. 3d DCA Oct. 2, 2019); Angeles-Delgado v. Benitez, 44 Fla. L. Weekly D2278 (Fla. 3d DCA Sept. 11, 2019). But see Younkin v. Blackwelder, 44 Fla. L. Weekly D549 (Fla. 5th DCA Feb. 22, 2019), review granted, No. SC19-385 (Fla. May 21, 2019); Dodgen v. Grijalva, 281 So. 3d 490 (Fla. 4th DCA 2019), review granted, No. SC19-1118 (Fla. Oct. 1, 2019). (EMAS, C.J., and SCALES, J., concur.)

__________________

(MILLER, J., concurring.) I agree with the majority that we are constrained by a body of binding precedent from finding a departure from the essential requirements of law. Nonetheless, I write separately to express the concern that we are again placing our imprimatur on the procedural mechanism engaged for obtaining the information sought here, and to further reiterate the apprehension that the decision by our high court in Worley1 has given rise to “seemingly disparate treatment in personal injury litigation between plaintiffs and defendants.” Younkin v. Blackwelder, 44 Fla. L. Weekly D549, at D550 (Fla. 5th DCA Feb. 22, 2019), review granted No. SC19-385 (Fla. May 21, 2019) (citation omitted).

In this dispute, the insurer, a non-party to the underlying litigation, is subject to a discovery order requiring it to produce certain financial information regarding its relationship with a physician-expert.2 The challenged discovery takes the form of interrogatories.

Although Boecher3 generally permits the discovery of this information, here, the order is directed toward a non-party. Accordingly, such “[d]iscovery . . . must be had by deposition or subpoena duces tecum.” Sjuts v. State, 754 So. 2d 781, 782 (Fla. 2d DCA 2000) (citations omitted); see Fla. R. Civ. P. 1.340(a) (“Without leave of court, any party may serve on any other party written interrogatories to be answered.”); Fla. R. Civ. P. 1.310(a) (“[A]ny party may take the testimony of any person, including a party, by deposition upon oral examination.”). “[C]ompelling [a party’s] nonparty physicians to respond to interrogatories creates the potential for irreparable harm.” Parker v. James, 997 So. 2d 1225, 1226 (Fla. 2d DCA 2008) (citing Broward Cty. v. Kerr, 454 So. 2d 1068, 1069 (Fla. 4th DCA 1984) (“The challenged order clearly represents a departure from the essential requirements of law, as the trial court had no authority to order petitioner to respond to interrogatories directed to a non-party . . . Thus, the court had no authority to compel petitioner to obtain the desired information from its former employee.”)). Nonetheless, prior opinions of this court have effectively endorsed this use of interrogatories, in declining to grant certiorari under identical circumstances. See Villalobos v. Martinez, 44 Fla. L. Weekly D2458 (Fla. 3d DCA Oct. 2, 2019); Angeles-Delgado v. Benitez, 44 Fla. L. Weekly D2278 (Fla. 3d DCA Sept. 11, 2019).

Regardless of the inherent procedural infirmity, as was aptly declaimed by Justice Polston in his wholly prescient dissent, “[a] jury is entitled to know the extent of the financial connection between the party and the witness, and the cumulative amount a party has paid an expert during their relationship.” Worley v. Cent. Fla. Young Men’s Christian Ass’n, Inc., 228 So. 3d 18, 29 (Fla. 2017) (Polston, J., dissenting). Further, “[a] party is entitled to argue to the jury that a witness might be more likely to testify favorably on behalf of the party because of the witness’s financial incentive to continue the financially advantageous relationship.” Id.

Today, our jurisprudential landscape is littered with decisions charting unsuccessful efforts by insurers to protect themselves from financial discovery of this ilk. See Barnes v. Sanabria, 45 Fla. L. Weekly D135 (Fla. 5th DCA Jan. 17, 2020); Tortorella-Andrews v. Delvecchio, 45 Fla. L. Weekly D65 (Fla. 2d DCA Jan. 3, 2020); Villalobos, 44 Fla. L. Weekly D2458; Dodgen v. Grijalva, 281 So. 3d 490 (Fla. 4th DCA 2019), review granted No. SC19-1118 (Oct. 1, 2019). Conversely, plaintiffs’ counsel easily thwarts the same discovery, because the practical effect of Worley is “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.” State Farm Mut. Auto. Ins. Co. v. Knapp, 234 So. 3d 843, 845 n.1 (Fla. 5th DCA 2018).

Accordingly, Worley has served to obfuscate the transparency in financial bias arguably imputed to plaintiff-retained experts, but not defense-retained experts. As “the weight a jury gives to expert testimony is directly linked to the perceived credibility of the witness,” Julia A. Correll, Trower v. Jones: Expanding the Scope of Permissible Cross-Examination of Expert Witness, 20(4) Loy. U. Chi. L.J. 1071, 1073 (1989), this incongruity compromises “the truth-seeking function and fairness of the trial process.” Allstate Ins. Co. v. Boechner, 733 So. 2d 993, 998 (Fla. 1999). “Fair play and common sense dictates that what is sauce for the goose is sauce for the gander,” thus, the continuing viability of Worley should give us pause for reflection. Sharp v. State, 221 So. 2d 217, 219 (Fla. 1st DCA 1969); see also Younkin v. Blackwelder, 44 Fla. L. Weekly at D549.

__________________

1Worley v. Cent. Fla. Young Men’s Christian Ass’n, Inc., 228 So. 3d 18 (Fla. 2017).

2Although the order ostensibly requires responses from the petitioner, the information sought is maintained by the insurer.

3Allstate Ins. Co. v. Boecher, 733 So. 2d 993 (Fla. 1999).

* * *

Filed Under: Uncategorized

Primary Sidebar

Recent Posts

  • Insurance — Homeowners — All-risk policy — Coverage — Cracking damage to home caused by blasting vibrations from nearby rock quarry — Exclusions — Earth or soil movement — Wear and tear, marking, deterioration, settling, shrinking, bulging, or expansion — Concurrent causes — Trial court did not err in denying insurer’s motion for directed verdict based on policy’s exclusion of coverage for earth sinking, rising, or shifting or soil movement resulting from blasting — Insurer’s position was based upon mischaracterization of testimony by insureds’ expert, who was steadfast in his opinion that none of the damage to home resulted from soil or earth movement, but was instead the result of shock waves from blasting that caused the house to shake — Based upon competing expert testimony, jury could have reasonably concluded that it was shock waves, not soil or earth movement, that caused damage — Jury instructions — Covered and excluded perils — Concurrent cause doctrine — Trial court did not err by instructing jury that land shock waves from blasting in combination with wear and tear, marring, deterioration, settling, shrinking, bulging, or expansion was not excluded under policy — Although policy’s earth movement exclusion contained an explicit anti-concurrent cause provision, this provision would have come into play only if jury had first determined that one of the causes of damage was earth movement — Judgment in favor of insureds affirmed
  • Insurance — Homeowners — Discovery — Work product — Claims files — Appeals — Certiorari — Trial court did not depart from essential requirements of the law by compelling insurer to produce documents from its claims and underwriting files — Documents in claims and underwriting files are not automatically work product — Insurer’s assertion of work-product privilege was overly broad, and insurer did not argue or prove that the requested documents were prepared in anticipation of litigation
  • Wrongful death — Medical malpractice — Vicarious liability — Punitive damages — Amendment of complaint — Allegation that defendant, through its president, committed acts of intentional misconduct or gross negligence by assigning a nurse practitioner to provide after-hours care to a patient with highly complex problems that were beyond nurse practitioner’s permissible scope of practice — Trial court erred by granting plaintiff’s motion to amend complaint to assert claim for punitive damages — Plaintiff failed to demonstrate a reasonable basis for award of punitive damages based on intentional conduct where evidence was insufficient to show that defendant’s president either knew or otherwise intended for nurse practitioner to independently order medical treatment for patient outside the scope of nurse practitioner’s practice without consulting president — Furthermore, there was insufficient evidence demonstrating that defendant’s president condoned or ratified nurse practitioner’s independent treatment with actual knowledge of a high probability that doing so would result in additional harm or death to patient — Plaintiff failed to demonstrate a reasonable basis for award of punitive damages based on gross negligence where facts of case did not show that defendant, through its president or nurse practitioner, evinced a reckless or conscious disregard of or indifference to human life
  • Torts — Negligent hiring — Punitive damages — Trial court departed from essential requirements of law in granting motion to amend complaint to add claim for punitive damages against employer of driver who crashed company car into plaintiff’s vehicle — Proffered evidence was not sufficient to establish reasonable basis for finding that defendant was grossly negligent when it allegedly hired employee without conducting adequate pre-employment screening, obtaining a driving and criminal history, and confirming that employee held valid driver’s license — Proffered evidence was either not directly related to allegation that employer was grossly negligent or sufficiently refuted by defendant
  • Torts — Negligent hiring — Punitive damages — Trial court departed from essential requirements of law in granting motion to amend complaint to add claim for punitive damages against employer of driver who crashed company car into plaintiff’s vehicle — Proffered evidence was not sufficient to establish reasonable basis for finding that defendant was grossly negligent when it allegedly hired employee without conducting adequate pre-employment screening, obtaining a driving and criminal history, and confirming that employee held valid driver’s license — Proffered evidence was either not directly related to allegation that employer was grossly negligent or sufficiently refuted by defendant

Blog Archives

Footer

The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Website or any of the e-mail links contained within the site do not create an attorney-client relationship between Abbey, Adams, Byelick & Mueller, L.L.P. and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney. opens in a new windowAbbey, Adams, Byelick, & Mueller XML Sitemap Index

Copyright © 2023 · Abbey Adams Byelick & Mueller, LLP · All Rights Reserved · Defending Liability, Employment Claims and Appeals Since 1982