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

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 -