Brent A. Dodgen v. Kaitlyn P. Grijalva

• Court: Supreme Court of Florida
• Decided: October 14, 2021
• Docket: SC19-1118
• Status: Published

Opinion

Supreme Court of Florida ____________

No. SC19-1118 ____________

BRENT A. DODGEN, Petitioner,

vs.

KAITLYN P. GRIJALVA, Respondent.

October 14, 2021

PER CURIAM.

This case involves a discovery dispute in an automobile

negligence case in which the plaintiff, Respondent Kaitlyn Grijalva,

seeks to discover from the defendant, Petitioner Brent Dodgen, the

financial relationship, if any, between Dodgen’s nonparty insurer

and his expert witnesses. After being ordered to provide the

discovery, Dodgen filed a petition for writ of certiorari in the Fourth

District Court of Appeal. We have for review Dodgen v. Grijalva, 281

So. 3d 490 (Fla. 4th DCA 2019), in which the Fourth District denied

Dodgen’s petition. Id. at 490. In denying the petition, however, the Fourth District opined that this Court’s decision in Worley v.

Central Florida Young Men’s Christian Ass’n, 228 So. 3d 18 (Fla.

2017), which the Fourth District interpreted as having held that the

financial relationship between a plaintiff’s law firm and treating

physicians is never discoverable, has resulted in the disparate

treatment of plaintiffs and defendants. See Dodgen, 281 So. 3d at

490-92. The Fourth District then certified the following question as

being one of great public importance:

WHETHER THE DECISION IN WORLEY . . . SHOULD BE APPLIED TO PROTECT A DEFENDANT’S INSURER THAT IS NOT A PARTY TO THE LITIGATION FROM HAVING TO DISCLOSE ITS FINANCIAL RELATIONSHIP WITH EXPERTS RETAINED FOR PURPOSES OF LITIGATION, INCLUDING THOSE THAT PERFORM COMPREHENSIVE MEDICAL EXAMINATIONS UNDER FLORIDA RULE OF CIVIL PROCEDURE 1.360?

Id. at 492 (citation omitted). We have jurisdiction. See art. V,

§ 3(b)(4), Fla. Const.

To more precisely express the dispositive issue presented in

this case—a case involving certiorari review by the district court of a

discovery order—we reframe the certified question as follows:

Whether it is a departure from the essential requirements of law to permit discovery regarding the financial relationship between a defendant’s nonparty insurer and an expert witness retained by the defense?

-2- And we answer this question in the negative. We thus approve the

result reached by the Fourth District. Because, as the Fourth

District itself acknowledged, Worley is not applicable, we decline to

readdress the holding or analysis adopted in Worley.

We begin by reviewing Worley and then the background in this

case. We next address Grijalva’s two jurisdictional challenges, both

of which are meritless. Lastly, we explain why we answer the

rephrased question in the negative.

WORLEY

In Worley, the defendant sought certain discovery “in an effort

to establish the existence of a referral relationship between [the

plaintiff’s] attorneys and her treating physicians.” 228 So. 3d at 20.

The requested information included asking the plaintiff herself “if

she was referred to her specialists by her attorneys.” Id. After the

trial court ordered that the information be produced, the plaintiff

“filed a petition for writ of certiorari with the Fifth District.” Id. at

21. The Fifth District denied the petition, finding “no error

regarding the trial court’s order,” and certified conflict with a

decision of the Second District Court of Appeal. Id. at 22.

-3- On discretionary review, this Court quashed the Fifth

District’s decision, while narrowly framing the certified conflict

issue as “whether the attorney-client privilege protects a party from

being required to disclose that his or her attorney referred the party

to a physician for treatment.” Id. at 20. In addition to answering

that narrow question in the affirmative, id. at 25, Worley also held

that “the attorney-client privilege protects . . . a law firm from

producing documents related to a possible referral relationship

between the firm and its client’s treating physicians.” Id. at 22. In

reaching its holdings, Worley also “consider[ed]” the more general

issue of “whether the financial relationship between a plaintiff’s law

firm and the plaintiff’s treating physician is discoverable.” Id.

Worley’s analysis turned in part on distinguishing this Court’s

earlier decision in Allstate Insurance Co. v. Boecher, 733 So. 2d 993

(Fla. 1999), which held that “discovery requests . . . propounded

directly to a party regarding the extent of that party’s use of and

payment to a particular expert” were permissible. Id. at 994. In

Boecher, we authorized such discovery because it is “directly

relevant to a party’s efforts to demonstrate to the jury the witness’s

bias.” Id. at 997. In the wake of Boecher, certain district court

-4- decisions had “extended Boecher to allow discovery of the financial

relationship between law firms and treating physicians.” Worley,

228 So. 3d at 23. Worley disagreed with the reasoning of those

district courts, concluding “that the relationship between a law firm

and a plaintiff’s treating physician is not analogous to the

relationship between a party and its retained expert.” Id. Worley

reasoned that, whereas the plaintiff in Boecher “sought discovery

from the other party, in that case Allstate Insurance,” the plaintiff’s

law firm in Worley was “not a party to the litigation.” Id. And

Worley distinguished treating physicians from “experts who had

been hired for the purposes of litigation.” Id. (noting that treating

physicians “typically testif[y] . . . concerning [their] . . . own medical

performance on a particular occasion and [do] not opin[e] about the

performance of another” (alterations in original) (quoting Fittipaldi

USA, Inc. v. Castroneves, 905 So. 2d 182, 186 (Fla. 3d DCA 2005))).

After distinguishing Boecher, Worley concluded that although

“the evidence code allows a party to attack a witness’s credibility

based on bias,” id. (citing § 90.608(2), Fla. Stat. (2015)), the

credibility of the treating physician at issue could be attacked in

certain ways that did not require “further discovery into a possible

-5- relationship between the physician and the plaintiff’s law firm,” as

that discovery “would require the production of communications

and materials that are protected by attorney-client privilege,” id. at

24. Circling back to the certified-conflict issue, Worley held that

the attorney-client privilege “precludes defense counsel from asking

a plaintiff whether his or her attorney referred the plaintiff to a

physician for treatment.” Id. at 24. 1

THIS CASE

Dodgen (the defendant) filed a motion for protective order in

the trial court seeking to preclude Grijalva (the plaintiff) from

discovering information that, if it exists, would establish a financial

relationship between Dodgen’s expert witnesses and his liability

insurer, and between those witnesses and his defense law firm.

Dodgen, 281 So. 3d at 490. After the trial court denied Dodgen’s

motion, Dodgen petitioned the Fourth District for a writ of

certiorari, arguing in pertinent part that the trial court’s order

departed from the essential requirements of the law, namely Worley.

1. Worley offered certain additional reasons for declining to uphold the discovery order, see Worley, 228 So. 3d at 25-26, but none have any relevance to our decision here.

-6- Id. at 491. Dodgen reasoned that Worley must equally apply to

defendants, with the result being that “the financial relationship

between a defendant’s law firm or insurance company and expert

witnesses is no longer discoverable.” Id. 2

After recognizing that Florida law has long allowed discovery of

certain financial-bias information, see id. (citing Boecher, 733 So.

2d at 997, and Springer v. West, 769 So. 2d 1068, 1069 (Fla. 5th

DCA 2000)), the Fourth District rejected Dodgen’s argument,

reasoning that the discovery prohibition adopted in Worley “was not

broadly written to cover discovery sought from the defense side of a

case.” Id. However, the Fourth District concluded that the

application of Worley solely to the plaintiff’s side of the case has

“resulted in disparate and possibly unfair treatment of plaintiffs

and defendants.” Id. at 492. And the Fourth District certified the

question set forth above. Id.

2. While the case was pending in the district court, Grijalva withdrew her discovery request as to Dodgen’s defense law firm. Dodgen, 281 So. 3d at 491.

-7- JURISDICTION

Grijalva challenges our jurisdiction on the ground that

Dodgen’s notice to invoke this Court’s discretionary jurisdiction was

purportedly not timely filed “within 30 days of rendition of the order

to be reviewed,” as required by Florida Rule of Appellate Procedure

9.120(b). She argues that Dodgen was required to file the notice

within thirty days of the date the Fourth District issued an order

stating in pertinent part that the “petition for writ of certiorari is

denied” and that “[a]n opinion will follow,” even though the Fourth

District did not issue that opinion until weeks later. This argument

is meritless, most obviously because at the time the Fourth District

issued its order, there was still judicial labor to be performed. See

Whitaker v. Jacksonville Expressway Auth., 131 So. 2d 22, 23 (Fla.

1961) (“[W]hen the labor of the court has terminated with its final

decision and the issuance of its mandate thereon, it no longer has

jurisdiction to enter a certificate [certifying a question of great

public importance.]”). The flawed nature of Grijalva’s argument is

underscored by the fact that a motion for written opinion filed

under rule 9.330(a)(1)(D) tolls rendition of an appellate order. See

St. Paul Fire & Marine Ins. Co. v. Indem. Ins. Co. of N. Am., 675 So.

-8- 2d 590, 592 (Fla. 1996) (“[A] district court’s order is not ‘rendered’

until there has been a disposition of all motions relative to that

order.”); see also Fla. R. App. P. 9.020(i) (Rendition of an Appellate

Order). And yet, under Grijalva’s logic, a district court order that by

its very own terms indicates that a written opinion will follow is to

be treated as “rendered” on the day the unelaborated order is

issued. We decline to reach such an absurd result.

Grijalva next challenges our jurisdiction on the ground that

the Fourth District purportedly failed to “pass[] upon” the certified

question, as required by article V, section 3(b)(4) of the Florida

Constitution. We disagree. The question certified was passed

upon—that is, decided—by the Fourth District. In addressing

whether Worley “should be applied” to the discovery controversy in

this case, the Fourth District decided that by its terms Worley could

not be applied to provide the protection from discovery sought by

the defendant. Dodgen, 281 So. 3d at 491-92. Admittedly, the

Fourth District’s opinion invites this Court to readdress the analysis

adopted in Worley, but that does not mean the certified question

itself seeks an opinion on an issue that was not decided by the

district court. We have jurisdiction.

-9- ANALYSIS

When a discovery order “depart[s] from the essential

requirements of the law and results in material injury for the

remainder of the case that cannot be corrected on appeal,” relief by

way of certiorari review may be granted. Paton v. GEICO Gen. Ins.

Co., 190 So. 3d 1047, 1052 (Fla. 2016). “But not every erroneous

discovery order creates certiorari jurisdiction because some orders

are subject to adequate redress by plenary appeal from a final

judgment.” Allstate Ins. Co. v. Langston, 655 So. 2d 91, 94 (Fla.

1995) (citing Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097, 1100

(Fla. 1987)). Moreover, a “departure from the essential

requirements of the law . . . is something more than a simple legal

error.” Allstate Ins. Co. v. Kaklamanos, 843 So. 2d 885, 889 (Fla.

2003). It requires “a violation of a clearly established principle of

law.” Id.

“[C]learly established law” can derive from a variety of legal sources, including recent controlling case law, rules of court, statutes, and constitutional law. Thus, in addition to case law dealing with the same issue of law, an interpretation or application of a statute, a procedural rule, or a constitutional provision may be the basis for granting certiorari review.

Id. at 890.

- 10 - Here, the Fourth District concluded that the discovery issue in

Worley was distinguishable. See Dodgen, 281 So. 3d at 491

(“Worley was not broadly written to cover discovery sought from the

defense side of a case.”). We agree. Worley thus cannot form the

basis for concluding that the discovery order at issue departs from

“clearly established law.” Kaklamanos, 843 So. 2d at 890.

As noted above, Worley addressed a narrowly framed certified

conflict question: “whether the attorney-client privilege protects a

party from being required to disclose that his or her attorney

referred the party to a physician for treatment.” Worley, 228 So. 3d

at 20. That is obviously not the issue presented in this case.

Although Worley went beyond that narrow issue, and although

Worley’s use of the term “a party” might suggest that the decision

could apply to both sides in litigation, Worley was clearly decided in

a plaintiff-only context. Indeed, Worley repeatedly referenced

“treating physicians” and “treatment.” See, e.g., id. at 24 (“[T]he

conflict issue before this Court [is] whether the attorney-client

privilege precludes defense counsel from asking a plaintiff whether

his or her attorney referred the plaintiff to a physician for

treatment.” (emphasis added)). And Worley turned in part on the

- 11 - notion that “treating physicians” are distinguishable from “hired”

experts. Id. at 23. Worley thus addressed a specific type of plaintiff

witness that has no mirror image on the defense side. Even if it can

be argued that a compulsory medical examiner should be viewed as

analogous to a treating physician, nothing in Worley suggests its

decision was intended to apply to any witnesses other than those

“attempting to make [their] patient[s] well.” Id. (alterations in

original) (quoting Frantz v. Golebiewski, 407 So. 2d 283, 285 (Fla.

3d DCA 1981)). In that regard, Worley stands in stark contrast to

Elkins v. Syken, 672 So. 2d 517 (Fla. 1996), in which this Court

expressly noted that its holding limiting the scope of discovery of

financial information from the defense medical expert “affect[ed]

both plaintiffs and defendants alike” and was “in no way intended

to favor either plaintiffs or defendants.” Id. at 522.

Because Worley in no way speaks to the discoverability of the

financial relationship between a defendant’s nonparty insurer and

the defendant’s experts, the discovery order at issue here did not

violate a “principle of law” that was “clearly established” by Worley.

Kaklamanos, 843 So. 2d at 889. The Fourth District thus correctly

concluded that Worley did not support granting certiorari relief.

- 12 - Notably, the Fourth District also cited the Fifth District’s

decision in Springer, a decision that is actually on point. There, the

defendant in an automobile negligence case sought “a writ of

certiorari to review a discovery order compelling him to answer

interrogatories regarding the relationship between his trial expert

and his liability insurer.” Springer, 769 So. 2d at 1069 (emphasis

added). In denying the defendant’s petition, Springer quite

reasonably concluded that Boecher was applicable, even though the

interrogatories at issue sought “information regarding the

relationship between [the defendant’s] insurer, a nonparty, and the

expert, whereas in Boecher, the insurer was a party.” Id. Springer

explained:

Where an insurer provides a defense for its insured and is acting as the insured’s agent, the insurer’s relationship to an expert is discoverable from the insured. To hold otherwise would render Boecher meaningless in all but a small class of cases. Similarly, a defendant may question a plaintiff about any relationship between his or her attorney and the plaintiff’s trial expert. In both cases, the information sought is relevant to the witness’s bias and will enhance the truth-seeking function and fairness of the trial, as intended by Boecher.

Id. Springer thus held that the financial relationship between a

defendant’s nonparty insurer and the defense experts is

- 13 - discoverable, while additionally concluding that the discovery rules

should be applied evenhandedly to both parties.

Dodgen argues that the reasoning of Springer is “no longer

valid” after Worley. But even if Worley might be said to undermine

some of the language in Springer, the issue in Springer was wholly

distinct from the issue in Worley. The issue in Springer was,

however, the same issue presented in this case. Therefore, the

circuit court here did not depart from the essential requirements of

law in permitting discovery related to the financial relationship

between Dodgen’s insurer and defense experts. Indeed, the circuit

court’s ruling was dictated by law that was binding on the circuit

court, namely the rule articulated by the district court in Springer. 3

And we see no basis for revisiting the rule laid down by the Springer

court.

Although the Fourth District reached the correct result in

denying Dodgen’s petition, we recognize the concern about what the

3. The fact that Springer controlled the circuit court’s ruling in this case may well explain why the Fourth District declined to address any of Dodgen’s other arguments. We similarly do not address those arguments.

- 14 - Fourth District described as a post-Worley uneven playing field

skewed in favor of plaintiffs when it comes to the discovery of

financial-bias relationships between the parties’ medical experts

and nonparty representatives. But whether Worley was wrongly

decided or whether some other factor has caused the purportedly

uneven playing field, is not properly before us. The holding of

Worley should be reexamined only in a case in which it is actually

at issue. And here, as the Fourth District acknowledged, Worley is

not applicable.

CONCLUSION

We answer the rephrased question in the negative. Because

the trial court’s order permitting discovery related to the financial

relationship between Dodgen’s insurer and defense experts was

consistent with established law, we agree with the Fourth District

that the trial court did not depart from the essential requirements

of the law in denying Dodgen’s motion for protective order.

Accordingly, we approve the result reached by the Fourth District.

It is so ordered.

- 15 - CANADY, C.J., and LAWSON, MUÑIZ, COURIEL, and GROSSHANS, JJ., concur. LABARGA, J., concurs in result. POLSTON, J., dissents with an opinion.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

POLSTON, J., dissenting.

As explained in my dissenting opinion in Younkin v.

Blackwelder, No. SC19-385 (Fla. Oct. 14, 2021), I would recede

from Worley v. Central Florida Young Men’s Christian Ass’n, 228

So. 3d 18 (Fla. 2017), and require disclosures equally from plaintiffs

and defendants. Accordingly, I respectfully dissent.

Application for Review of the Decision of the District Court of Appeal Certified Great Public Importance

Fourth District – Case No. 4D19-1010

(Broward County)

Kansas R. Gooden, Miami, Florida, and Kevin D. Franz, Boyd & Jenerette, PA, Boca Raton, Florida,

for Petitioner

Douglas F. Eaton of Eaton & Wolk, PL, Miami, Florida,

for Respondent

William W. Large of Florida Justice Reform Institute, Tallahassee, Florida; and Jason Gonzalez and Amber Stoner Nunnally of Shutts & Bowen LLP, Tallahassee, Florida,

- 16 - for Amici Curiae Chamber of Commerce of the United States of America and Florida Justice Reform Institute

John Hamilton of Law Office of John Hamilton of Tampa, P.A., San Antonio, Florida; and Patrick A. Brennan of HD Law Partners, P.A., Tampa, Florida,

for Amici Curiae Dr. Michael Foley and Dr. John Shim

Bryan S. Gowdy of Florida Justice Association, Jacksonville, Florida,

for Amicus Curiae Florida Justice Association

- 17 -