REBECCA G. BARNES AND GEORGE M. BARNES

v.

SAMANTHA C. SANABRIA

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

REBECCA G. BARNES AND

GEORGE M. BARNES,

Petitioners,

v. Case No. 5D19-1461

SAMANTHA C. SANABRIA,

Respondent.

________________________________/

Opinion filed January 17, 2020

Petition for Certiorari Review of Order from the Circuit Court for Volusia County, Randell H. Rowe, III, Judge.

Kansas

R.

Gooden, of Boyd and Jennerette, P.A., Miami, for Petitioners.

Daniel Morgan, of Morgan and Morgan, P.A., Orlando, for Respondent.

EDWARDS, J.

Petitioners, Rebecca G. Barnes and George M. Barnes, request this Court to issue a writ of certiorari to quash the trial court’s pretrial discovery order that requires these individual defendants to provide information regarding the financial relationship between Petitioners’ liability insurer and their counsel vis-à-vis two medical experts retained by Petitioners’ counsel who would provide medical evaluations of Respondent, Samantha C. Sanabria. Although we agree that Petitioners present a compelling argument that

2 current Florida law does not treat personal injury plaintiffs and defendants equally when it comes to compelling disclosure of ongoing or repeated litigation-oriented relationships between those providing medical evaluations and those who represent the parties in litigation, we must deny the petition as we are bound to follow the Florida Supreme Court’s opinion in Worley v. Central Florida Young Men’s Christian Ass’n, 228 So. 3d 18 (Fla. 2017). However, as we have done in other similar cases,¹ we certify a question as one of great public importance regarding the apparent disparate treatment of litigants as a result of Worley.²

This case arises out of a motor vehicle accident. Respondent filed a negligence action against Petitioners, alleging that Petitioner Rebecca G. Barnes negligently operated a motor vehicle—with permission of its owner, Petitioner George M. Barnes— so that it collided with Respondent’s motor vehicle, causing Respondent to suffer bodily injuries and lost wages. Petitioners’ counsel retained Dr. Hawthorne to perform a compulsory medical examination of Respondent and disclosed Dr. Stanley as a medical

Petitioners objected and filed a motion for protective order, requesting that the trial court preclude the subject discovery concerning Dr. Hawthorne’s and Dr. Stanley’s relationships with Petitioners’ insurance company and Petitioners’ counsel’s law firm. Petitioners argued that such discovery requests were improper because neither their insurance company nor their counsel’s law firm were parties to the action. Relying on Worley, Petitioners maintained that Boecher⁴ discovery cannot be sought from nonparties, such as their insurance company and/or their counsel’s law firm.

3 Respondent’s discovery requests defined “redacted” to mean the exclusion only of the name, social security number, or any other identifying information of the patient/claimant/plaintiff.

4 Petitioners argued that applying Worley to protect non-parties on only a plaintiff’s side from this type of discovery but requiring defendants to disclose such information obtained from their non-party counsel and insurer would constitute a denial of equal protection under the law, a deprivation of due process, and a denial of access to courts. After the trial court denied Petitioners’ objections and motion for protective order, they filed a motion for reconsideration, asserting that the subject discovery sought information protected by the attorney-client privilege and would result in the invasion of non-parties’ rights to privacy if the requested reports had to be produced. Those objections and the motion for reconsideration were also denied.

We need not dwell on the evolution of Florida law regarding discovery of financial information and testimonial track records from physicians involved in litigation, as that was well-covered in our opinion in Younkin, 44 Fla. L. Weekly at D550. Based on the current state of Florida law, the trial court did not depart from the essential requirements of the law in overruling Petitioners’ objections and in denying Petitioners’ motion for protective order. Accordingly, we are compelled to deny the petition for writ of certiorari. However, we certify the following question to the Florida Supreme Court as one of great public importance:

WHETHER THE ANALYSIS AND DECISION IN WORLEY

SHOULD ALSO APPLY TO PRECLUDE A DEFENDANT’S

LIABILITY INSURER WHO IS PROVIDING A DEFENSE TO

ITS INSURED OR THE RETAINED DEFENSE LAW FIRM, NEITHER OF WHOM IS A PARTY TO THE LITIGATION,

FROM

HAVING

TO

DISCLOSE

THEIR

FINANCIAL

RELATIONSHIP WITH PHYSICIANS THAT PROVIDE

EVALUATIONS OF PETITIONER’S MEDICAL CONDITION

INCLUDING THOSE THAT PERFORM COMPULSORY

MEDICAL EXAMINATIONS UNDER FLORIDA RULE OF

PETITION FOR WRIT OF CERTIORARI DENIED, QUESTION CERTIFIED.

EVANDER, C.J., and EISNAUGLE, J., concur.