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.

What Is “Boecher” Discovery?

Below is a list of discovery that can be requested from the defense in insurance cases.

  • State the identity of each matter in which each defense expert has been retained, performed services, rendered an opinion, conducted an examination, or given testimony for any legal action for you or anyone acting on your behalf, including your defense counsel, insurance carrier and/or claims adjusting agents, both in Florida and nationally, in the preceding three (3) years.  Identify the case by case number, the name of the court, the county and state of filing, the date of filing, the insurance claim number, the defense attorney, the defendant’s name, and the plaintiff(s)’ name.
  • For each matter listed above, give the amount in dollar paid directly or indirectly to the expert (whether paid by you, your attorneys, your insurance company, your adjusters, or anyone on your behalf); specify who made the payments and when they were made.
  • State the identity of all cases in which this expert has given expert witness testimony at any time during the preceding three (3) years, either in a deposition or a court appearance and as to each whether he or she was testifying as a treating physician or consulting expert, the name, telephone number and office address of the attorney calling the expert to give such testimony, whether the testimony was for the plaintiff or the defendant and all fees this expert charged for the work that led to and the time taken for the giving of that testimony, both in Florida and nationally.
  • Please identify the total amount of money which this expert has been paid during the past three years by you or anyone acting on your behalf, including your defense counsel, insurance carrier and/or claims adjusting agents, specifically delineating amounts paid for medical treatment versus amounts paid when retained as a consultant, expert, or the like.
  • Regarding this case only, as to this expert, please list everything that you, your insurance company, your adjusters, your attorneys or those within your control have provided to the expert (including but not limited to records, reports, correspondence, checks or drafts, videos, x-rays, scans, radiographs, or anything else provided by you).
  • What is the percentage of work performed by this expert on behalf of all plaintiffs during the preceding three (3) years?
  • What is the percentage of work performed by this expert on behalf of all defendants during the preceding three (3) years?
  • What is the number of hours devoted on a yearly basis by this expert to being an expert witness during each of the preceding three (3) years?
  • What is the percentage of hours devoted by this expert to work as an expert witness during each of the preceding three (3) years?
  • What is the percentage of income earned by this expert from serving as an expert witness during each of the preceding three (3) years?
  • State the exact amount of money you, your insurance company, your adjusters and your attorneys have paid each expert to date for his/her work in the instant litigation, including the dates and amounts of each payment, the work performed corresponding to each payment, and whether there is currently a balance on the bill.
  • State each expert’s charges for testifying at deposition, testifying at trial, and phone conferencing to discuss a case.

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September 12, 2019