Court of Appeal once again recognizes disparate treatment between opposing parties on discovery of expert bias and certifies question to Florida Supreme Court to seek equal application of the law on plaintiffs and defendants.
Just as it did in its 2019 opinion in Younkin v. Blackwelder, the Fifth DCA denied the medical malpractice defendants’ petition in Routhier for ceriorari relief from a discovery order which compelled defense counsel and his law firm to disclose the amount of money paid to its retained expert witnesses over a three-year period. While the court observed that this type of financial discovery was permissible based upon earlier precedent and “furthered the truth-seeking function and fairness of the trial,” it again acknowledged that the application of the law concerning financial discovery was not being applied evenly to plaintiffs, who cannot be compelled to disclose the extent of their financial relationship with an expert, versus defendants, who were being compelled to disclose such information. Thus, although the Fifth DCA denied the petition, it once again certified the following question to the Florida Supreme Court 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 PURPOSES OF LITIGATION INCLUDING THOSE THAT PERFORM COMPULSORY MEDICAL EXAMINATIONS UNDER FLORIDA RULE OF CIVIL PROCEDURE 1.360?
It should be noted that on May 21, 2019, the Florida Supreme Court accepted jurisdiction to hear Younkin v. Blackwelder, and oral arguments were held on September 10, 2020. At this point, the court has not yet released its opinion. Accordingly, it remains to be seen whether this area of the law will evolve to apply evenly to litigants on both sides.
Case Law Alerts, 1st Quarter, January 2021 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2021 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.