VERNA D. TILLMAN

v.

MAHLON O. SWEAT

FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________ Case No. 5D2023-1338 LT Case No. 2020-CA-1745 _____________________________ VERNA D. TILLMAN, Petitioner, v. MAHLON O. SWEAT, Respondent. _____________________________ Petition for Certiorari Review of Order from the Circuit Court for Marion County. Steven G. Rogers, Judge. Brian J. Lee, of Morgan & Morgan, Jacksonville, for Petitioner. Warren Kwavnick, of The Law Office of Warren B. Kwavnick, PLLC, Pembroke Pines, for Respondent. June 12, 2024

SOUD, J.

Petitioner Verna D. Tillman seeks certiorari relief from the trial court’s order compelling financial-bias-related discovery regarding expert witnesses she disclosed as “treating physicians.” We have jurisdiction. See Art. V, § 4(b)(3), Fla. Const.; Fla. R. App. P. 9.030(b)(2)(A). We deny the petition.

2

I.

Tillman was involved in a motor vehicle accident she contends was caused by the negligence of Respondent Mahlon Sweat. After she filed suit, Sweat sought discovery regarding certain physicians Tillman provided in her expert disclosure. In her expert disclosure, Tillman identified four “treating physicians”—each of whom would testify about his or her treatment of Tillman and, importantly, “offer opinions on causation and/or damages, including, but not limited to, diagnoses, prognosis, impairment, permanency, disability, aggravation of any pre-existing conditions, costs, reasonableness, necessity, and relationship of past and future medical care.” Tillman also disclosed additional retained experts. All experts—those Tillman designated as treating physicians as well as her retained experts— have “reviewed any and all medical records pertaining to the care and treatment received by” Tillman. Pertinent here, in reliance on Allstate Insurance Co. v. Boecher, 733 So. 2d 993 (Fla. 1999), Sweat propounded discovery relating to claimed financial bias of the “treating physicians,” seeking, inter alia, (a) information concerning whether she or any other Morgan & Morgan clients had been referred to the treating physician(s) and (b) documents regarding any referral relationship between her attorneys and the treating physician(s). Tillman objected to the requested discovery arguing such was prohibited by Worley v. Central Florida Young Men’s Christian Ass’n, Inc., 228 So. 3d 18 (Fla. 2017). Following a hearing, the trial court granted Respondent’s motion to compel discovery. After further motion practice pertaining to Tillman’s responses or claimed inadequacies related thereto, the trial court again entered an order compelling further discovery responses and granting sanctions against Tillman (reserving on amount). This Petition followed.

II.

A.

B.

Tillman argues that the discovery permitted by the trial court is forbidden by Worley. However, Worley addresses only discovery of certain financial-bias-related matters pertaining to a plaintiff’s treating physician. Thus, Tillman’s argument rests entirely upon her premise that those experts she disclosed as “treating physicians” are indeed such. This is where Tillman’s argument, and thus her petition, fails. At the outset, we note that Tillman’s description of certain experts as “treating physicians” is not determinative. See Pitts v. Neptune, 49 Fla. L. Weekly D555 (Fla. 1st DCA Mar.⁶, 2024). Rather, it is the subject matter of the witnesses’ intended testimony as set forth in the disclosure that guides our determination. See id. Expert witnesses are those whose “scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue.” See § 90.702, Fla. Stat. (2022). Testimony presented by a treating physician “blurs the boundary between fact testimony and expert testimony” because treating physicians, like retained experts, possess the expert knowledge contemplated by section 90.702 and that knowledge informs the treating physician’s testimony.” Gutierrez v. Vargas, 239 So. 3d 615, 622 (Fla. 2018). Treating physicians are, in some respects, fact witnesses— that is, their testimony arises from their first-hand participation in the medical treatment of a plaintiff. See id. (“A treating physician is a fact witness, and testifies to past facts based on personal knowledge. Those facts involve a technical matter about which the jury lacks basic knowledge, but they are facts nonetheless.”) (citation omitted); see also Pitts, 49 Fla. L. Weekly D555 (“While an expert witness assists the jury to understand the facts, a treating physician testifies as a fact witness ‘concerning his or her own medical performance on a particular occasion and is not opining about the medical performance of another.’” (quoting

III.

Accordingly, since the experts Tillman disclosed as “treating physicians” are hybrid experts from whom financial-bias-related discovery may be obtained, the trial court’s order did not depart from essential requirements of law. Accordingly, Tillman’s Petition for Writ of Certiorari is DENIED. It is so ordered. EDWARDS, C.J., and KILBANE, J., concur.