Florida Supreme Court allows asymmetric discovery



On April 13, 2017, the Florida Supreme Court in Worley vs. Central Florida Young Men’s Christian Ass’n, Inc., 228 So. 3d 18 (Fla. 2017), held that attorney-client privilege shields from discovery virtually any attempt to determine the relationship between a plaintiff’s law firm and a plaintiff’s treating physicians. The Court in Worley did not address the converse situation, namely the extent to which solicitor-client privilege, or other privilege, protects from discovery the relationship between an insured defendant’s law firm and the mandatory medical examiner withheld by the insured defendant.

At the outset, it is important to be aware of the difference between these two types of cookies. The Florida Evidence Code considers a plaintiff’s attending physician (v. was not selected by plaintiff, the Florida Evidence Code treats such a physician as a retained expert.


Following the Court’s decision Worley decision, defense attorneys in several districts, in responding to and objecting to the discovery addressed to the retained expert by the defense attorney, cite to Worley to avoid disclosing the existence of a financial relationship between the retained expert and the defense attorney’s third-party law firm, or between the retained expert and the third-party insurer. Shortly after, Florida district courts noticed how one-sided expert financial discovery became following Worley.

Specifically, the fourth district of Dodgen vs Grijalva, 281 So. 3d 490 (Fla. 4th DCA 2019) and the fifth district of Younkin v. Blackwelder, 44 Fla. L. Weekly D549 (Fla. 5th DCA 2019) both certified to the Florida Supreme Court on matters of great public importance. No statement better sums up how asymmetrical this area of ​​law has become under Worley that the illustration of Judge Lambert in Younkin:

“A plaintiff law firm may refer 100 of its clients to the same treating physician, who may then testify as an expert witness at trial, without such referral arrangement being discoverable or disclosed to the jury, but if a defense firm sends each of these 100 complainants to their own expert to perform a CME [compulsory medical examination] under Florida Civil Procedure Rule 1.360, then later to testify at trial, the extent of the defense law firm’s financial relationship with the CME physician is readily detectable and can be used by the defense law firm. ‘plaintiff lawyers at trial to attack the doctor’s credibility on the basis of bias.’

Florida Supreme Court Opinion

On October 14, 2021, the Florida Supreme Court issued two opinions addressing the issue.

  • First come Dodgen vs Grijalva the Florida Supreme Court ruled that the lower court did not depart from the essential requirements of the law when it refused to grant defendant Dodgen’s request for a protective order preventing plaintiff Grijalva from discovering a relationship between Dodgen’s expert witnesses and Dodgen’s independent insurer and independent law firm. . The Court expressly noted that Worley addressed the narrow issue of “whether attorney-client privilege protects a party from being required to disclose that his attorney referred him to a doctor for treatment”, which was not the issue before the Fourth District or the lower court. Thus, the Court agreed that the Fourth District was correct in denying Dodgen’s motion for a writ of certiorari following the lower court’s denial of Dodgen’s motion for an order of protection. The Court also recognized that Worley had created an uneven playing field biased in favor of plaintiffs when it comes to uncovering relationships of financial bias between the parties’ medical experts and non-party representatives. However, the Court concluded by noting that Worley must be re-examined, only in the case where it is actually in question.

  • Secondly, in Younkin v. Blackwelder the Florida Supreme Court held that its decision in Dodged was controlling. Similar to Dodgedthe lower court of Younkin denied a motion for a protective order and demanded that the defendant produce information regarding the financial relationship between the defendant’s independent insurer and the defendant’s expert witnesses. Defendant Younkin then filed a writ of certiorari with the Fifth District, which the Fifth District denied, finding that Worley did not overturn pre-existing case law that found a doctor-law firm relationship or a doctor-insurer relationship. The Supreme Court agreed with the Fifth District and the lower court, finding that there had been no departure from the essential requirements of the law, and again found Worley inapplicable to the situation presented. However, the Court took great care to distinguish the dissenting position, on the basis of the case before it being presented via certiorari jurisdiction rather than via full appeal, which is discussed in the next paragraph.

Dissenting in both cases, Justice Polston noted that, afterWorley, there is compelling evidence that plaintiffs receive more favorable treatment than defendants under the law with respect to expert financial discovery. Judge Polston was prepared to step down from Worley because of this unequal treatment, despite the Court’s limited authority when its certiorari jurisdiction is invoked. In particular, he substantiated his dissent by explaining that the plaintiff/appellant in Worley presented the matter to the Court via certiorari jurisdiction, and that the Court has created this disparate treatment via its certiorari jurisdiction, so that it would not be improper for the Court to set aside via certiorari jurisdiction what ‘she did before through the jurisdiction of certiorari.


For practitioners preparing responses to a plaintiff’s discovery requests related to the financial relationship between non-party law firms and non-party insurers and retained experts, circuit courts and courts are unlikely to of Appeal favor motions for protective orders and motion for certiorari, respectively, seeking to protect such information from disclosure.

However, it is clear from both opinions that the Florida Supreme Court avoided the issue before it on jurisdictional grounds, so it is likely that the issue will come before the Court in the future. To post-Dodged and –Younkinit seems that the disparate treatment Worley created can only be dealt with in full review after a trial court and a district court have barred the discovery of a plaintiff in the same manner sought in Worleyas Polston J. expressly stated in his dissent.

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