Brent A. Dodgen v. Kaitlyn P. Grijalva ( 2021 )


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  •         Supreme Court of Florida
    ____________
    No. SC19-1118
    ____________
    BRENT A. DODGEN,
    Petitioner,
    vs.
    KAITLYN P. GRIJALVA,
    Respondent.
    October 14, 2021
    CORRECTED OPINION
    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)(2)(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 -