All eyes are on the Florida Supreme Court nowadays as another case awaits an answer to the much asked question: when must law firms disclose the fees paid to expert witnesses? And more specifically: are these rules being equally applied to both plaintiff and defense experts? The defendant in one medical malpractice case seems to think so. Defendants Christine M. Routhier, M.D. and St. Augustine Surgical, LLC sought relief in Florida’s Fifth District Court of Appeals after the trial court entered a discovery order compelling defense counsel to disclose the amount they had paid to their trial experts. The appellate court denied the defendants’ request but left open the question of fee disclosures for the Florida Supreme Court to decide.
The Routhier Opinion and its Predecessors
The Routhier case is couched in a number of previous rulings from Florida’s Fifth District. As such, the court reached this decision to deny relief by applying the analysis previously used in a substantially similar discovery order. In Younkin v. Blackwelder, 44 Fla. L. Weekly D549 (Fla. 5th DCA Feb. 22, 2019), which is currently on appeal before the Florida Supreme Court, the Fifth District also denied certiorari relief to the defendant who sought to quash a trial court’s order compelling disclosure of the defense expert’s fees.
In Younkin, the petitioner, Steven Younkin, was sued by the respondent, Nathan Blackwelder, for personal injuries resulting from a motor vehicle accident. Younkin’s counsel retained an orthopedic surgeon to perform a Compulsory Medical Examination on Blackwelder, pursuant to Florida Rule of Civil Procedure 1.360. Prior to the examination, Blackwelder’s counsel requested information concerning fees paid to the orthopedic surgeon, as well as the number of meetings between the surgeon and defense counsel. Younkin objected and moved for a protective order, arguing that the Florida Supreme Court recently held in Worley v. Central Florida Young Men’s Christian Ass’n, 228 So. 3d 18 (Fla. 2017), that the “disclosure of the financial relationship between a defense law firm and its expert witness is no longer discoverable.”
The trial court in Younkin permitted the discovery of the expert fees and the Fifth District denied the request for certiorari relief on the basis that the defendant/petitioner “failed to show that the trial court’s order departed from the essential requirements of law,” namely, that such discovery is permissible “to assist counsel in impeaching examining physicians and other experts by demonstrating that the expert has economic ties to the insurance company or defense law firm.”
The Fifth District also differentiated Younkin from Worley, noting that the latter case involved attorney-client privilege which protects against the disclosure of an attorney’s referral of a plaintiff to a treating physician.
Noting Disclosure Distinctions
Although the Fifth District held that Younkin’s discovery order was consistent with the law, it noted “the seemingly disparate treatment in personal injury litigation between plaintiffs and defendants regarding disclosure of this type of relationship.” The same court also voiced its concerns in State Farm Mut. Auto. Ins. Co. v. Knapp, 234 So. 3d 843, 845 n.1 (Fla. 5th DCA 2018), observing that “Worley seems, as a practical matter, to permit full Boecher [a case which permitted the disclosure of financial relationships with experts] 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.”
In light of these concerns, the Younkin court certified the following question to the Florida Supreme Court, which the Routhier court also certified verbatim: “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 medical examinations under Florida Rule of Civil Procedure 1.360?”
The Future of Fee Disclosures
The future of expert fee disclosures remains to be seen as Florida awaits answers from its Supreme Court. As defense counsel in Younkin noted, the failure to apply the law in Worley evenhandedly to both plaintiffs and defendants often results in plaintiff using the law “as a sword and a shield,” in that they refuse to respond to discovery requests about their experts, under the guise of privilege, while seeking the same information from defendants. In their argument before the Supreme Court, Younkin’s counsel suggested that the court either overturn Worley or rule that Worley should apply with equal force on both sides. Alternatively, it was suggested that financial bias impeachment be limited to what is already set forth under Rule 1.280 of Florida Rules of Civil Procedure.
Under Rule 1.280 (b)(5)(A)(iii)(4), an expert witness’s involvement in the case is discoverable and “may be based on the number of hours, percentage of hours, or percentage of earned income derived from serving as an expert witness…” However, the Rule also makes clear that “the expert shall not be required to disclose his or her earnings as an expert witness or income derived from other services,” but “only under the most unusual or compelling circumstances…” Fla. R. Civ. P. 1.280 (b)(5)(A)(iii)(4).
As written, the precedent set forth in Worley tends to create an unavoidable bias against defendants, in that plaintiffs may raise privilege protections that defendants cannot with regards to their attorneys’ relationships with expert witnesses. But interestingly, Florida’s Civil Rules generally prohibit discovery of such financial relationships. Although the appellate court’s recognition of the potential for bias has rightfully been raised for the Supreme Court to decide, it also seems that the clearest answer is within the procedural rules of the state. Whether the Florida Supreme Court will agree is still a question to be answered.