Boecher Discovery Allowed For Financial Relationships Of The Defense

Car Accidents

In the case of Jose Raul Angeles-Delgado and Jessica Carillo v. Julio Costa Benitez, Case Number 3D19-1022 (Fla. 3rd DCA September 11, 2019), Florida’s Third DCA held that financial relationships between the defendant’s experts, the defendant’s law firm, and the defendant’s insurer are discoverable according to Allstate Insurance Company v. Boecher, 733 So. 2d 993 (Fla. 1999).

Relevant Facts

Mr. Benitez sued Mr. Angeles-Delgado and Ms. Carillo for a car accident. In discovery, Benitez’s attorney sought discovery about the financial and professional relationships between the defendants’ insurer, expert witnesses, and the law firm defending them. Delgado and Carillo’s attorney moved the trial court for a protective order and was denied. This appeal followed.

Holding And Certified Conflict

The argument raised by the defendants was that Boecher discovery does not apply to non-parties according to Worley v. Central Florida YMCA, 228 So. 3d 18 (Fla. 2017). Florida’s Third DCA held that Worley only applies the attorney-client privilege to protect a communication where the plaintiff’s lawyer made a referral to a treating physician.

The Third DCA denied the defense petition for certiorari but cited case law where it has been certified as a question of great public importance to whether there is a disparate treatment between plaintiffs and defendants in personal injury litigation (See Younkin v. Blackwelder).

Commentary

This is yet another case where there is a vast difference in representing people versus representing multi-billion dollar mega-corporations.

For the most part (unless dealing with an extremely wealthy individual), people have limited financial resources and a limited desire to spend those resources on litigation. On the other hand, a multi-billion dollar insurance company whose business is litigation has a different perspective.

Real people may only need a lawyer once or twice during their lifetimes and they don’t care about changing the law for the next case that comes along. Meanwhile, an insurance company with a professional litigation department has a clear financial incentive in setting legal precedents that will benefit them in the next case.

While the insurance companies say that they are “people” too, they are not. The reality is that experts and law firms who get millions of dollars of repeat business from insurance companies have a much greater financial incentive to please the hands that feed them than the expert witnesses who go to bat for real people. Again, real people might never need a lawyer or may only need a lawyer once in their lifetimes.

This is why there is a need to treat plaintiffs and defendants differently in expert based personal injury litigation.

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September 12, 2019