“It is what it is.” While this phrase has become an annoying cliche in some contexts, the concept “it is what it is, not what the parties say it is” is a valid concept applicable in many areas of the law. Substance, not labels, controls. Take the issue of a “hybrid expert treating physician.” The First District recently reminded us that “it is what it is,” not necessarily what a party calls it.

In Pitts v. Neptune, ___ So. 3d ___, 2024 WL 956908 (Fla. 1st DCA 2024) (Case No. No. 1D2022-0960), the trial court compelled disclosure of certain expert witness discovery. The appellate court dismissed the petition for certiorari, finding that the order compelling discovery could be corrected on a post-judgment appeal. But the appellate court also addressed the substantive underlying issue: financial bias discovery related to the relationship between the petitioners’ law firm, Morgan & Morgan, P.A., and what the petitioners referred to as “hybrid expert/treating physicians.”

Relying on Allstate Ins. Co. v. Boecher, 733 So. 2d 993 (Fla. 1999), the respondent sought financial bias discovery related to the relationship between the petitioners’ law firm, Morgan & Morgan, P.A., and what the petitioners referred to as its “hybrid expert/treating physicians.” The petitioners refused to provide that discovery, citing Worley v. Cent. Fla. Young Men’s Christian Ass’n, Inc., 228 So. 3d 18 (Fla. 2017). To the extent that Worley remains, it said that a lawyer’s referral of a client to a treating physician was a confidential communication protected by the attorney-client privilege. Id. at 25. It also limited discovery of the financial relationship between a non-party law firm and a plaintiff’s treating physician. Id.

Worley, said the appellate court, addressed only treating physicians, not hired experts. Some courts–failing to understand that the issue is governed by rule 702–have confusingly stated that 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. See, e.g.,  Buzby v. Turtle Rock Cmty. Ass’n, Inc., 333 So. 3d 250, 253-54 (Fla. 2d DCA 2022) (citing Fittipalidi USA, Inc., v. Castroneves, 905 So. 2d 182, 186 (Fla. 3d DCA 2005)). The Pitts court started out great, but then it faltered. Indeed, treating physicians are not hired experts. But let’s keep going. There is something called a non-retained expert–also known as a “hybrid expert” or a “mixed fact/expert witness.” Non-retained experts are, indeed, “experts”: people who qualify to testify in the form of an opinion under rule 702 (section 90.702, Florida Statutes, in Florida court; Fed. R. Evid. 702 in federal court). Examples of non-retained experts are treating physicians in injury cases and public adjusters in property damage cases.

The Pitts court noted that treating physicians do not acquire their expert knowledge for the purpose of litigation, but “rather simply in the course of attempting to make their patient well.”  Frantz v. Golebiewski, 407 So. 2d 283, 285 (Fla. 3d DCA 1981). The court continued:

A party’s label for a witness matters little. Instead, the substance of the testimony drives the analysis. The trial court distinguished Worley because Petitioners’ “hybrid experts/treating physicians” were acting as experts retained for the purpose of trial. We agree. These physicians were given litigation binders that contained various medical records from Petitioners’ other providers and planned to offer testimony based on their review of those records and their treatment of Petitioners. This is the work of an expert witness, not an ordinary treating physician.

While the appellate court’s holding might not be wrong, again we see confusion in the language. The word “retained” is missing from the last sentence in the block quote above. The court should have said, “This is the work of a [retained] expert witness, not an ordinary treating physician.” The court, just a paragraph earlier, had recognized that treating physicians do have “expert knowledge.” (That’s why they qualify to testify in the form of opinion under rule 702.) But then the court got tired, I guess, when it implied that an ordinary treating physician is not an “expert witness,” forgetting to include the word “retained.”

In any event, the appellate court concluded that certiorari is not available unless the trial court order violates a clearly established principle of law and would result in a miscarriage of justice. See Balzer v. Ryan, 263 So. 3d 189, 191 (Fla. 1st DCA 2018). Because the trial court did not depart from any clearly established principle of law, reasoned the appellate court, the petitioners could not meet the threshold requirements for certiorari.

Judge Tanenbaum wrote an interesting opinion concurring in part and dissenting in part, writing:

Dismissal is the proper disposition here because this court does not have jurisdiction to grant the relief sought by the petitioners. The petitioners seek quashal of a discovery order, which by its nature is procedural and interlocutory. As a non-final order, it is not constitutionally reviewable by us on appeal, while the underlying suit remains pending in the trial court, except as provided by rule adopted by the supreme court. See Art. V, § 4(b)(1), Fla. Const. The discovery order is not one of the appealable non-final orders listed in the rule adopted for that purpose. See Fla. R. App. P. 9.130. The petitioners, then, no doubt are pursuing the only avenue they have at this point.

In the light of the constitutional constraints on the appellate court’s review, however, the dissent noted that the extraordinary writ of certiorari is reserved for interlocutory orders that threaten legally cognizable harm that cannot be sufficiently addressed on direct appeal at the end of the case. Cf. Mintz Truppman, P.A. v. Cozen O’Connor, PLC, 346 So. 3d 577, 579 n.6 (Fla. 2022) (characterizing the writ as an extraordinary remedy that may be granted for review of a nonfinal order only when the order, departing from the essential requirements of law, will injure a party such as to leave no adequate remedy on appeal). This is so, said the dissent, because certiorari stems from the constitutional guarantee that the courts will be open to redress “any injury” suffered by a person. Art. I, § 21, Fla. Const. (1968 rev.) (“The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.” (emphasis supplied)).

Indeed, continued the dissent:

… the supreme court has recognized that certiorari is a vehicle to fulfill this guarantee when there is no other avenue to an adequate remedy. See Kilgore v. Bird, 6 So. 2d 541, 544 (Fla. 1942) (describing certiorari as “a discretionary common-law writ” that may issue in the absence of any other “adequate” legal remedy to cure an unauthorized or unlawful order “that results or reasonably may result in an injury which section 4 of the Declaration of Rights of the Florida constitution commands shall be remedied by the due course of law in order that right and justice shall be administered”); see also Decl. of Rights § 4, Fla. Const. (1885 rev.) (“All courts in the State shall be open, so that every person for any injury done him in his lands, goods, person or reputation shall have remedy, by due course of law, and right and justice shall be administered without sale, denial or delay.” (emphasis supplied)). For there to be a legally cognizable harm to support our certiorari jurisdiction, then, there must be an infringement of some constitutional or statutory right (i.e., a judicially enforceable right). Cf. Broward Cnty. v. G.B.V. Intern., Ltd., 787 So. 2d 838, 842 (Fla. 2001) (“The writ functions as a safety net and gives the upper court the prerogative to reach down and halt a miscarriage of justice where no other remedy exists.”). It is incumbent upon the petitioners to demonstrate such an infringement to properly invoke this court’s writ authority. The petitioners fail to meet this burden.

The petitioners relied on the Florida Supreme Court’s decision in Worley v. Cent. Florida Young Men’s Christian Ass’n, Inc., 228 So. 3d 18, 26 (Fla. 2017), to argue both that the trial court’s discovery order was overbroad (because it ordered the production of information beyond what the Florida Supreme Court said in that case was permissible under the discovery rules) and that it encroached on the attorney-client privilege. The trial court’s order stated, in pertinent part:

[The petitioners] shall produce complete responses to Defendant’s discovery requests for any individual identified in Plaintiff’s Expert Witness Disclosure as a witness from whom Plaintiff intends to elicit expert opinions at the time of trial, including “hybrid treating physician” expert witnesses. [The petitioners] shall produce a response to [the respondent’s] financial bias discovery requests, to include the total amount of money paid by Morgan and Morgan, P.A. to [the petitioners’] listed expert witnesses, including “hybrid treating physician” expert witnesses.

The biggest reason this was wrong–and even the dissent failed to mention it–is that interrogatories are answered by parties. This is question one on the Bar exam. Boecher involved repeated use of an expert witness by a party that was a frequent litigant, not the party’s law firm. When a party answer’s interrogatories, it is the party giving the answers, which must be sworn to.

Two things–which are very clear–are overlooked by many lawyers and judges: (1) the party’s law firm is not required to answer interrogatories. Again, interrogatories are answered, under oath, by the party; (2) how would a party, especially an individual involved in his first ever lawsuit, be able to swear, under oath, as to the answer to the question how much money the party’s law firm has paid to the party’s expert witness? Is the party required to burglarize his law firm or hack into its computer and invade the books to figure out the answer to that question? That visual is absurd, but it proves my point. Interrogatories are answered by parties, such as the plaintiff. Even if the plaintiff’s law firm were to provide the answer to the plaintiff, how could the plaintiff be expected to give the answer, under oath, in an interrogatory answer? The plaintiff does not have personal knowledge.

Most insurance defense lawyers simply–it seems–fail to grasp this very basic concept. But they don’t need to be sad, for they can obtain the desired information in a legally permissible way: by deposing the expert in question. They can ask the expert, at his deposition, how much he has been paid by the plaintiff’s law firm. Such information might, indeed, be admissible at trial; it’s relevant to the issue of bias. The potential bias of a witness is always relevant. So the opposing party is, indeed, entitled to this information, but that does not mean it can get it via interrogatory to the opposing party. Again, the party answers the interrogatories, under oath, based on personal knowledge.

Yet I have not seen a case that used this rationale for denying a motion to compel better answers.

In any event, the Pitts dissent continued:

Even if Worley could be read to suggest that this request at least in part seeks to uncover information that is beyond the scope of permissible discovery under Florida Rule of Civil Procedure 1.280(b), discovery is a procedural tool of the courts that is created by rule. A court rule by itself cannot give rise to a substantive right, and there is no constitutional or statutory right against being burdened with the expense and inconvenience of responding to overbroad discovery. For this reason, “[o]verbreadth is not a proper basis for certiorari review of discovery orders.” Bd. of Trustees of Internal Improvement Tr. Fund v. Am. Educ. Enterprises, LLC, 99 So. 3d 450, 456 (Fla. 2012); see also Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097, 1100 (Fla. 1987) (“Litigation of a non-issue will always be inconvenient and entail considerable expense of time and money for all parties in the case. The authorities are clear that this type of harm is not sufficient to permit certiorari review”). Reliance on Worley in this respect to support certiorari jurisdiction, then, is misplaced.

That left, according to the dissent, the petitioners’ contention that the trial court’s order invaded the attorney-client privilege or some right to privacy or confidentiality regarding health information and medical records. Of course, said the dissent, these were all substantive rights. See, e.g., Art. I, § 23, Fla. Const.; § 456.057, Fla. Stat.; Fla. Evid. Code § 90.502(2); cf. Worley, 228 So. 3d at 25 (finding “that the question of whether a plaintiff’s attorney referred him or her to a doctor for treatment is protected by the attorney-client privilege”). Yet, lamented the dissent, the petitioners had failed to identify, with specificity, what privileged communications or other confidential information were presently subject to compelled disclosure by the court’s order.

On its face, the order that was the subject of the petition did not overrule any objection to disclosure of any cataloged documents or information claimed to be protected. Moreover, said the dissent, the appendix was devoid of a privilege log that was put before the trial court, setting out objectionable documents qualifying for protection from disclosure. The appendix also lacked any deposition transcripts that reveal certified privilege objections that the trial court had overruled. General claims of privilege or confidentiality, said the dissent, do not suffice to identify the substantive harm requiring an immediate remedy from the court under the constitution. The petitioners, therefore, failed to sufficiently invoke the appellate court’s authority to issue a writ of certiorari, so the petition had to be dismissed.