In Pitts v. Neptune, 1D2022-0960 (Fla. 1st DCA March 6, 2024), the plaintiffs sought certiorari review of the trial court’s order compelling plaintiffs to respond to the defendant’s financial bias discovery regarding the relationship between the plaintiffs’ law firm and what plaintiff referred to as their “hybrid expert/treating physicians.” Plaintiffs had refused to provide the discovery, citing Worley v. Central Florida YMCA, Inc., in which the Florida Supreme Court protected a lawyer’s referral of a client to a treating physician as a confidential attorney-client communication, and limited the discovery of the financial relationship between a non-party law firm and a plaintiff’s treating physician. In dismissing the plaintiffs’ petition, the First District observed that to the extent Worley remains good law post-tort reform, it applies to treating physicians, who testify as fact witnesses regarding their own medical performance on a particular occasion. By contrast, plaintiffs’ “hybrid” witnesses were acting as experts retained for trial. They were given litigation binders with medical records from the plaintiffs’ medical providers, and planned to testify based on their review of those records.

The Court held this to be the work of an expert witness, not an ordinary treating physician, which brought the financial relationship between the witnesses and the plaintiffs’ law firm within the scope of discovery. The distinction between treating physicians and experts disguised as “hybrids”—which the Court based on the substance of the witness’ testimony rather than their label on the witness list—will be helpful for defendants seeking financial bias discovery. View the opinion here.