Kansas R. Gooden and Geneva Fountain challenged a trial court’s order requiring the defendant’s counsel’s law firm to disclose its financial relationship with a compulsory medical examiner by filing a petition for writ of certiorari with the Fifth District Court of Appeal. The petition argued that under the Florida Supreme Court’s decision in Worley v. Central Florida Young Men’s Christian Ass’n, 228 So. 3d 18 (Fla. 2017), the disclosure of a financial relationship between a party’s law firm and its expert witnesses is no longer discoverable. The petition also outlined the apparent disparate application of Worley to plaintiffs and defendants and asked the Court to consider that “what is good for the goose is good for the gander.”
While the appellate court denied certiorari relief, the Court discussed the “seemingly disparate treatment in personal injury litigation between plaintiffs and defendants regarding the disclosure of” the financial relationships between expert doctors and counsel. The Fifth District provided the following example:
For example, under Worley, a plaintiff law firm can refer 100 of its clients to the same treating physician, who may later testify as an expert witness at trial, without that referral arrangement being either discoverable or disclosed to the jury, yet if a defense firm sends each one of these 100 plaintiffs to its own expert to perform a [compulsory medical examination] under Florida Rule of Civil Procedure 1.360, and then later to testify at trial, the extent of the defense law firm’s financial relationship with the CME doctor is readily discoverable and can be used by the plaintiff law firm at trial to attack the doctor’s credibility based on bias.
Although the Court recognized the difference in treatment the law required for plaintiffs and defendants, the Court concluded it was required by “the present status of the law.” Based on the compelling argument in the petition that the law was not being applied even-handedly, the Fifth District certified the following question as one of great public importance:
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 THE PURPOSES OF LITIGATION INCLUDING THOSE THAT PERFORM COMPULSORY MEDICAL EXAMINATIONS UNDER FLORIDA RULE OF CIVIL PROCEDURE 1.360?
The Worley decision has been affecting personal injury litigation across the state since its release in 2017. This is an important topic and should be closely watched for any changes in or discussion of the law involving expert discovery. Challenges are being brought across the state.
Kansas Gooden is a Board Certified Appellate Specialist, AV rated, and serves as the firm’s appellate practice group leader. She has extensive experience handling all types of civil appellate proceedings, including extraordinary writs and plenary appeals, in state and federal courts. She also provides trial and litigation support to attorneys throughout the state. Kansas is highly involved in the state and local bar associations and has served in many leadership roles. She currently is the Chair of the FDLA’s Amicus Committee and serves on the Board of Directors for the organization. Kansas is a frequent lecturer and travels the state presenting seminars and presentations on various topics to both attorneys and adjusters.
Geneva Fountain is an attorney in our appellate group. Prior to joining the firm, Ms. Fountain clerked for the Honorable Stephanie W. Ray at the Florida First District Court of Appeal. While in law school, Geneva served as a writing and research editor and as the editor-in-chief for the Florida State University Business Review. In addition, she worked as a teaching assistant in Legal Writing and Research I & II.
If you have any questions regarding expert discovery or the impact of the Worley decision, or if you would like to refer a matter, please contact our appellate attorneys.