Six months after the Florida Supreme Court held that insurance companies’ financial connections to expert witnesses can be revealed in litigation, a state appeals court won’t force discovery of similar information about one of Florida’s largest plaintiffs’ firms.
Although the ruling was largely procedural in nature, attorneys said it points up continuing issues in Florida’s tort system: Some plaintiffs’ firms may enjoy cozy relationships with certain doctors – but that information is often kept away from jurors.
Florida’s 5th District Court of Appeal late last week dismissed a petition from Publix Super Markets Inc., asking the court to intervene and review an order from the circuit court in Orlando. In the personal injury case, Publix had requested information about the financial relationships between treating doctors and the injury victim’s law firm, Morgan & Morgan, hoping to show potential bias by the doctors.
Tania Molina was injured in 2018 when a Publix vehicle, driven by a Publix employee, crashed into Molina’s car. Attorneys for Molina had objected to Publix’ discovery request, and the trial court upheld the objection. Publix asked the appeals court to step in.
The 5th DCA panel of judges said it’s too soon – Publix did not show why it wouldn’t have adequate remedy during the regular appeals process.
“We do not reach the merits of Molina’s objections or the trial court’s rulings as we are dismissing the petition based on a lack of jurisdiction,” the panel noted in the April 8 opinion.
Publix attorneys in the case declined to comment on the ruling. But one Florida insurance defense attorney said the dismissal could now give Publix and corporations in similar situations more incentive to settle cases rather than go through drawn-out appeals if they don’t have confidence that the financial connections would eventually be exposed.
The case also underlines what some attorneys and judges have called a disparity in the information that insurance companies must disclose about how much they pay expert witnesses, and what plaintiffs’ firms must provide about their connections to treating physicians. In October, the Florida Supreme Court held in two decisions that insurance companies must divulge payments to expert witnesses. In earlier rulings, the court had found that plaintiffs’ firms’ connections were protected by attorney-client privilege, which the Molina attorneys asserted in the Publix case.
But the October rulings sidestepped the disparity question, and other cases are now pending before the high court, asking it to provide further clarification.
“This decision is a big deal,” William Large, president of the Florida Justice Reform Institute, said about the Publix case. “It points to some very fundamental problems with the civil justice system.”
In the Publix case, the appellate court noted that none of the health care providers objected to the discovery request. The plaintiffs’ attorneys also did not offer proof that the disclosure would create a financial burden, nor that it would divulge trade secrets, the court explained.
Despite that, the court ruled against Publix’ intervention request, at least for now.
“Here, Publix has failed to demonstrate irreparable harm because any error in the trial court’s discovery order can be addressed on plenary appeal, subject to the harmless error test,” the appeals court wrote. The court said it rejected Publix’s argument that the trial court order denying discovery “effectively eviscerates” the grocer’s defense on the bias issue.
The trial court did permit some discovery of certain financial relationships, including a letter of protection provided to the plaintiff. But it wasn’t clear from the court documents how much that disclosure revealed.
Letters of protection, or LOPs, have become widely used in personal injury claims and are a growing concern for corporations and insurance companies. With the letters, plaintiffs agree to pay the health care providers once the injury suit is settled or adjudicated. Plaintiffs’ lawyers have said they allow people of little means to receive medical care when the victim doesn’t have adequate health insurance.
But business defense attorneys have said that some personal injury lawyers ask plaintiffs to sign the letters of protection immediately after an injury, and to refrain from using their own medical insurance when they seek treatment. The idea is to work with cooperative doctors who will charge more, which can lead to larger settlements and higher future medical costs for patients who need follow-up care, Large and others said.
At a Florida legislative hearing in 2019, a lawyer for Publix, Lauren McBride, testified: “The sole purpose of the LOP, why it exists, is to drive up verdicts and settlements,” according to a Kaiser Health News report.
McBride said that nearly two-thirds of slip-and-fall injury claims in Publix stores involve letters of protection.
With decisions like the 5th DCA’s, though, full information about LOPs, the prices charged by the doctors, the number of referrals by law firms to the treating physicians, and compensation from Morgan & Morgan to the doctors may not be revealed until deep into the years-long appeals process, if at all, Large said.
“If the doctor is referred by the plaintiff’s attorney and they used an LOP and charged a higher price than what health insurance pays, is that something the jury should know?” Large asked.
In her petition to the DCA, the appellate attorney for Publix, Diane DeWolf, argued that a witness’ bias, including that of a treating physician, is relevant in every case. Limiting discovery will cause “irreparable harm that cannot be remedied on appeal because the appellate court will not be able to determine how the requested discovery, had it been permitted, would have affected the outcome of this case,” DeWolf wrote.
Attorneys for the plaintiff could not be reached for comment Monday. But in response to the Publix petition, attorney Kristin Norse argued that asking the appeals court to intervene on discovery was extraordinary, and that Publix was not irreparably harmed by the denial.
