Dodgen v. Grijalva

• Decision Date: 14 October 2021
• Docket Number: SC19-1118
• Parties: Brent A. DODGEN, Petitioner, v. Kaitlyn P. GRIJALVA, Respondent.
• Court: Florida Supreme Court

331 So.3d 679

Brent A. DODGEN, Petitioner,

v.Kaitlyn P. GRIJALVA, Respondent.

No. SC19-1118

Supreme Court of Florida.

October 14, 2021

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, 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

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?

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.

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 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 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 . 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.

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. 1st DCA 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. 2d 590, 592 (Fla. 1996) ("[A] district court's order is not ‘r...