FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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Case No. 5D2023-1338

LT Case No. 2020-CA-1745

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VERNA D. TILLMAN, 

Petitioner, 

v.

MAHLON O. SWEAT, 

Respondent. 

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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.
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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.
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The discretionary common law writ of certiorari is an 

“extraordinary remedy” that is only issued by this Court when 

necessary “to reach down and halt a miscarriage of justice where 

no other remedy exists.” Adventist Health Sys./Sunbelt, Inc. v. 

Machalek, 383 So. 3d 534, 536 (Fla. 5th DCA 2023) (quoting Univ. 

of Fla. Bd. Of Trs. v. Carmody, 372 So. 3d 246, 251–52 (Fla. 2023)). 

Certiorari is limited because “the scope of certiorari review is more 

constrained than that of direct appellate review, for [t]he writ 

never was intended to redress mere legal error.” Id. at 537

(internal quotation marks omitted).1

To warrant relief, Tillman must establish (1) the trial court’s 

order departs from the essential requirements of the law, (2) 

resulting in material injury for the remainder of the case, (3) that 

cannot be corrected on post-judgment appeal. See Carmody, 372 

So. 3d at 252. The last two requirements are often combined into 

the concept of “irreparable harm.” Id. We must first consider the 

final two elements because irreparable harm is jurisdictional and 

must be found before we may decide whether there has been a 

departure from the essential requirements of the law. See id.

(citing Williams v. Oken, 62 So. 3d 1129, 1132 (Fla. 2011)); see also

Holmes Reg’l Med. Ctr., Inc. v. Dumigan, 151 So. 3d 1282, 1284 

(Fla. 5th DCA 2014). 

Generally, certiorari will lie to review ordered discovery of 

information protected from disclosure by a recognized privilege or 

other law. See Cowan v. Gray, 348 So. 3d 630, 632 (Fla. 5th DCA 

2022) (citing State Farm Mut. Auto. Ins. v. Knapp, 234 So. 3d 843, 

848 (Fla. 5th DCA 2018)). In this case, because Tillman argues that 

the discovery ordered by the trial court would violate the attorneyclient privilege and HIPAA, the jurisdictional requirements 

permitting our review are satisfied.

1 “Florida judicial policy limits common law certiorari review 

so as to avoid ‘piecemeal review of nonfinal trial court orders [that] 

will impede the orderly administration of justice.’” DeSantis v. Fla. 

Educ. Ass’n, 313 So. 3d 151, 153 (Fla. 1st DCA 2020) (quoting Jaye 

v. Royal Saxon, Inc., 720 So. 2d 214, 215 (Fla. 1998)).
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However, the petition sub judice is properly denied because 

the trial court’s order does not depart from the essential 

requirements of law. 

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
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Buzby v. Turtle Rock Cmty. Ass’n, Inc., 333 So. 3d 250, 253–54 (Fla. 

2d DCA 2022))). 

Treating physicians are limited to their medical 

opinions as they existed at the time they were 

treating the plaintiff, while an expert may form 

new opinions in order to help the trier of fact decide 

the case. Although a treating physician may

possess the same qualifications as an expert 

witness, treating physicians form medical opinions 

in the course of rendering treatment and may 

therefore testify to the fact that they formed those 

opinions, and explain why they did so, provided 

such testimony is otherwise admissible. 

Gutierrez, 239 So. 3d at 622–23 (citation omitted). 

“It is entirely possible that even a treating physician’s 

testimony could cross the line into expert testimony.” Id. at 624. 

(quoting Fittipaldi USA, Inc. v. Castroneves, 905 So. 2d 182, 186 

n.1 (Fla. 3d DCA 2005)). Whether the doctors identified by Tillman

are indeed fact witness treating physicians

turns on the role played by the witness: if the 

treating physician gives a medical opinion formed 

during the course and scope of treatment in 

fulfillment of their obligation as a physician, then 

the physician is a fact witness, albeit a highly 

qualified one. If, however, the treating physician 

gives an opinion formed based on later review of 

medical records for the purpose of assisting a jury 

to evaluate the facts in controversy, the physician 

acts as an expert witness, and should be considered 

as such.

Id. (emphasis added). 

In the case before us, the witnesses Tillman disclosed as 

“treating physicians” intend to offer opinion testimony exceeding 

the scope permissible for a fact witness treating physician. 

Tillman’s expert disclosure itself makes this clear for two reasons.
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First, according to the expert witness disclosure, these

physicians will offer testimony on their “care and treatment of 

[Tillman], and offer opinions on causation and/or damages, 

including, but not limited to, . . . impairment, permanency, 

disability . . . and relationship of past and future medical care.” 

Such opinion testimony exceeds the scope of a fact witness treating 

physician whose testimony relates to diagnosis and treatment of 

injury or disease. This intended testimony addresses litigationrelated issues.

Further, according to Tillman’s expert witness disclosure, 

these treating physicians will be called upon to offer testimony 

based in part on their review of “any and all medical records 

pertaining to the care and treatment received by [Tillman].”

Testimony based on records not generated or relied upon in the 

care and treatment by each treating physician goes beyond the 

function of a fact witness treating physician and into the realm of 

an expert witness.

Therefore, these particular treating physicians are in fact

“hybrid” witnesses. A treating physician is properly characterized 

as a “hybrid witness” when “such a witness [provides] testimony 

on the plaintiff’s medical history and course of treatment, while 

also offering opinions regarding future medical treatment and 

permanency.” Orthopedic Care Ctr. v. Parks, 155 So. 3d 377, 382

n.5 (Fla. 3d DCA 2014). And because they are hybrid witnesses,

they are subject to financial-bias discovery.

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. 
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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331. 

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