Theodore Babbitt | Searcy Denney Scarola Barnhart & Shipley
In Wirley v. Central Florida Young Men’s Christian Association, 228 So.3rd 18 (Florida, 2017), the Supreme Court ruled disclosure of a financial relationship between a party, a plaintiff’s attorney and an expert, is no longer discoverable. That Court did not, answer the question of whether the same rule applies regarding a defense lawyer’s relationship with an expert. The Wirley case was specifically limited to the relationship between an attorney and a treating physician as opposed to a retained expert, concluding that, “The relationship between a law firm and a plaintiff’s treating physician is not analogous to the relationship between a party and it’s retained expert.” 228 So.3rd app 23. In Younkin, v. Blackwelder, case No. SC19-385, and Dodgen v. Grijalva, case No. SC19-1118, the Supreme Court was faced with the question of whether the same rule should apply to a defense lawyer’s relationship with his or her hired expert. The argument in those cases was, that applying the existing law in Wirley, supra, the jury heard only one side of the story because they only heard evidence of the financial relationship between the defense and it’s experts, as opposed to the financial relationship of the plaintiff and their experts.
The Supreme Court declined to extend the law in Wirley, supra to cover the defense situation, despite a certified question by both the 4th and 5th Districts on this subject. The Supreme Court argued the issue raised by the certified question, was not properly before the court because it did not apply to the fact of the cases in which it was raised. The Supreme Court explained that in Wirley, supra it had narrowly framed the issues as hinging on the existence of a treating physician relationship with the plaintiff, which simply does not exist on the defense side. The majority did not agree with Justice Poulton who dissented and argued that Wirley’s applications results in unequal treatment under the law because the jury was hearing impeachment only referring to the defendant’s experts. It should be noted that discovery, to make sure financial discovery is available from both sides if the procedure is set forth in Allstate Insurance Company v. Boecher, 705 So.2d 106 (Florida 4th DCA 1998), as modified in Allstate Insurance Company v. Boecher, 733 So.2d 993 (Florida, 1999) permit financial discovery of experts on both sides, within the bounds of Florida Rule of Civil Procedure 1.280(b)(4)(A)(iii).
In affirming the trial courts denial of the personal injury defendants attempts to block disclosure of the relationship between their attorneys’ financial relationships with medical expert witnesses the Supreme Court has drawn a sharp line distinguishing a treating medical expert witness and a hired expert regarding the type of discovery permitted to show an on-going financial relationship between attorneys and the witness.