Reverse Boecher Discovery

February 13, 2013 | Attorney, Matthew Dolman
Reverse Boecher Discovery What's good for goose is good for the gander. Its an old adage but at least one Florida Court has opined that additional discovery will be allowed by powerful insurance carriers against plaintiff attorneys and the doctors that treat our clients. The question may be why? Why would the insurance companies care about the extent of the relationship between a treating physician and the plaintiff attorney I will attempt to bring out the why.  We must first examine the relevant caselaw In Syken v. Elkins, 644 So.2d 539 (Fla. 3rd DCA 1994), Florida's Third District Court of Appeal established guidelines for the taking of discovery from an expert medical witness concerning the probability he was biased in favor of the party upon whose behalf he was retained. On appeal, the Florida Supreme Court approved and adopted the Third District's holding.” Crable at 26. The court said the decision “strikes a reasonable balance between a party's need for information concerning an expert witness's potential bias and the witness's right to be free from burdensome and intrusive production requests.” Id. at 522. The holding in Elkins was limited to medical experts. The court subsequently enacted Rule 1.280(b)(4)(A)(iii) which extended its decision to all experts. Both the decision and the Rule attempt to balance a party's need for information against the burden, annoyance and embarrassment production may cause the expert witness. They also speak to the courts' concerns that in the absence of reasonable limits, qualified experts may be unwilling to participate in the judicial process and discovery may become unnecessarily and unduly expensive. Following Elkins, the Florida Supreme Court addressed the limits of expert witness discovery propounded to a party. In Allstate Insurance Co. v. Boecher, 733 So.2d 993 (Fla.1999), the issue was whether Elkins and Rule 1.280 precluded a party from obtaining from its opponent, discovery concerning the extent of the opponent's relationship with an expert witness. The court held that the concerns it discussed in Elkins are not present when a party is asked about the extent of its relationship with an expert and the amount of money the party has paid the expert over time. Id. at 997. The court concluded that the guidelines it adopted in Elkins and incorporated into Rule 1.280(b)(4) did not apply. Id. at 999. In reaching its decision, the court observed: The information sought here would reveal how often the expert testified on Allstate's behalf and how much money the expert made from its relationship with Allstate. The information sought in this case does not just lead to the discovery of admissible information. The information requested is directly relevant to a party's efforts to demonstrate to the jury the witness's bias. *4 The more extensive the financial relationship between a party and a witness, the more it is likely that the witness has a vested interest in that financially beneficial relationship continuing. A jury is entitled to know the extent of the financial connection between the party and the witness, and the cumulative amount a party has paid an expert during their relationship. Id. There is a litany of case law that allows plaintiff attorney's to find out how much an expert witness has been paid by a particular insurance carrier. Insurance companies must hire experts to provide medical opinions via testimony in Court that are against the interest of the injured party. These experts are traditionally referred to as “hired guns.” Premier defense experts can command upward of $1,000,000.00 per year from insurance carriers for providing testimony. Juries have a right to know, in trial, that the particular expert taking the stand has an existing financial relationship with the applicable insurance carrier; as simple logic would tell you that they have a financial interest for providing said testimony and to what extent. Well this is where it all started. Now insurance carriers have propounded discovery asking plaintiff lawyers to produce information concerning their financial relationship with any given treating physician. Remember, what is good for the goose is good for the gander, right?  Well, not exactly. Some of the larger plaintiff law firms have fallen into a practice of referring cases to particular doctors with extreme regularity. Although a full blog could be spent discussing why an attorney would potentially ask a client to see a particular doctor we are focusing more on firms that have started more of a “relationship” with particular physicians office. Unfortunately, big insurance is taking the lead once again by firing shotguns instead of shooting darts. Recent case law is on point. It essentially tells the insurance carrier that “what is good for the goose is good for the gander” but you must be able to show that the plaintiff attorney and doctors office are actively engaged in a referral relationship. If you have nothing to hide than why not just provide this information you may ask?  Well, what big insurance is doing indirectly is making it harder and harder for smaller plaintiff attorney's office to deal with the abundance of manpower and paperwork to provide some of the detailed documents and records they are requesting.  It may produce a “chilling” effect on litigating smaller cases against insurance companies. In other words, the insurance carriers are attempting to make handling injury claims as cost prohibitive as possible. When the proverbial juice is no longer worth the squeeze attorneys will tend to not get involved due to the overwhelming discovery demands. Attorney Joe that hung his shingle up and fights these carriers may change his mind when he must hire a part time employee to help produce documents requested by court. Attorney Joe may think twice and even decline to sue a particular carrier because they know they do not possess the resources to provide them what is being asked for. Yet again, bravo on the part of big insurance companies for pushing this agenda. Just think of the treating physician that will be required to provide the same amount of information even though it may only show that he was one out of three doctors, within the area that would be willing to see a patient for an auto accident and be subjected to this. Ahhh, maybe soon instead of three there will be only one attorney in the area willing to do this…Yes, that is what we call a “chilling effect.” For more information on Florida discovery laws, take a look at our previous article: Reverse Boecher Discovery Dolman Law Group Accident Injury Lawyers, PA is a Clearwater personal injury law firm and represents injury victims throughout Florida.


Matthew Dolman

Personal Injury Lawyer

This article was written and reviewed by Matthew Dolman. Matt has been a practicing civil trial, personal injury, products liability, and mass tort lawyer since 2004. He has successfully fought for more than 11,000 injured clients and acted as lead counsel in more than 1,000 lawsuits. Always on the cutting edge of personal injury law, Matt is actively engaged in complex legal matters, including Suboxone, AFFF, and Ozempic lawsuits.  Matt is a lifetime member of the Million Dollar Advocates Forum and Multi-Million Dollar Advocates Forum for resolving individual cases in excess of $1 million and $2 million, respectively. He has also been selected by his colleagues as a Florida Superlawyer and as a member of Florida’s Legal Elite on multiple occasions. Further, Matt has been quoted in the media numerous times and is a sought-after speaker on a variety of legal issues and topics.

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