Third District Court of Appeal

State of Florida 

Opinion filed June 23, 2021.

Not final until disposition of timely filed motion for rehearing.

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No. 3D20-1811

Lower Tribunal No. 19-32364

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Juan Hidalgo and Elizabeth Hidalgo,

Petitioners,

vs.

Citizens Property Insurance Corporation,

Respondent.

A Writ of Certiorari to the Circuit Court for Miami-Dade County, Pedro 

P. Echarte, Jr., Judge.

Chad Barr Law, and Chad A. Barr (Altamonte Springs), for petitioners.

Methe & Rothell, P.A., and Kristi Bergemann Rothell (West Palm 

Beach), for respondent.

Before MILLER, GORDO and BOKOR, JJ. 

PER CURIAM.
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The Hidalgos petition this court for certiorari relief from the trial court’s 

order compelling discovery from the Hidalgos’ retained expert witness. 

Specifically, the Hidalgos claim that the trial court exceeded its authority in 

contravention of clearly established law by ordering that the expert engineer 

produce financial and business record discovery. The discovery sought

includes a list of cases with, and money received over the past three years 

from, the law firm representing the Hidalgos or any attorney associated with 

that firm. We have jurisdiction.1 

An appellate court appropriately grants certiorari relief only where the 

order on review (1) departs from the essential requirements of the law, and 

(2) results in material injury for the remainder of the case, (3) that cannot be 

corrected on postjudgment appeal. Williams v. Oken, 62 So. 3d 1129, 1132

(Fla. 2011). A trial court departs from the “essential requirements of the law” 

only when “there has been a violation of clearly established law resulting in 

a miscarriage of justice.” Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 

527 (Fla. 1995). The issue here turns on whether the trial court’s order 

1 See Hett v. Barron-Lunde, 290 So. 3d 565, 569 (Fla. 2d DCA 2020) (“An 

order compelling the production of documents by a nonparty is reviewable 

by certiorari because he or she has no adequate remedy by appeal.”).
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requiring the production of certain business records and financial information 

from the Hidalgos’ expert witness violates clearly established law. 

The Hidalgos contend that Worley2 and Florida Rule of Civil Procedure 

1.280(b)(5)(A)(iii) clearly establish a bar to the expert discovery sought by 

Citizens. We first examine what parameters Worley “clearly established.” On 

one hand, discovery directed to a party’s relationship with an expert witness 

is fair game. See Worley v. Cent. Fla. Young Men’s Christian Ass’n, 228 So. 

3d 18, 22-23 (Fla. 2017) (citing Allstate Ins. Co. v. Boecher, 733 So. 2d 993, 

994 (Fla. 1999)). On the other hand, discovery that implicates attorney-client 

privilege is not. As this court has previously explained, “[t]he Worley court 

held the attorney-client privilege precludes defense counsel from asking a 

plaintiff whether his or her attorney referred the plaintiff to a particular doctor 

for treatment.” Araujo v. Winn-Dixie Stores, Inc., 290 So. 3d 936, 939 (Fla. 

3d DCA 2019). 

The Hidalgos argue that the expert discovery sought fits within the 

impermissible attorney-client category set forth in Worley. We disagree.

“Worley holds only that the attorney-client privilege bars compelled 

disclosure of whether the plaintiff’s lawyer referred the plaintiff to a treating 

2 Worley v. Cent. Fla. Young Men’s Christian Ass’n, 228 So. 3d 18 (Fla. 

2017).
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physician.” Angeles-Delgado v. Benitez, 300 So. 3d 263, 264 (Fla. 3d DCA 

2019) (citing Worley, 228 So. 3d at 20).

3 Worley therefore provides no basis 

for certiorari relief here. 

We next examine Florida Rule of Civil Procedure 1.280(b)(5)(A)(iii)(4), 

which provides that:

An expert may be required to produce financial and business 

records only under the most unusual or compelling

circumstances and may not be compelled to compile or produce

nonexistent documents. Upon motion, the court may order 

further discovery by other means, subject to such restrictions as 

to scope and other provisions pursuant to subdivision (b)(5)(C) 

of this rule concerning fees and expenses as the court may deem 

appropriate.

3 Most district courts of appeal observed that Worley “resulted in disparate 

and possibly unfair treatment of plaintiffs and defendants.” Dodgen v. 

Grijalva, 281 So. 3d 490, 492 (Fla. 4th DCA 2019), review granted, No. 

SC19-1118 (Fla. Oct. 1, 2019); see also Younkin v. Blackwelder, 44 Fla. L. 

Weekly D549 (Fla. 5th DCA Feb. 22, 2019), review granted, No. SC19-385 

(Fla. May 21, 2019); Bupivi v. Pollard, 46 Fla. L. Weekly D324, 2021 WL 

484292 (Fla. 2d DCA Feb. 10, 2021); Tahan v. Munoz, No. 3D20-497, 2020 

WL 3261128 at *1 (Fla. 3d DCA Jun. 17, 2020) (Miller, J., concurring); 

Villalobos v. Martinez, 44 Fla. L. Weekly D2458, 2019 WL 4849324 (Fla. 3d 

DCA Oct. 2, 2019). The Hidalgos piggyback off this perceived (or real) 

disparate treatment and invite us to expand Worley into situations where no 

Florida appellate court has gone before. We respectfully decline the 

Hidalgos’ invitation for at least two reasons. First, such an expansion would 

conflict with this court’s previous opinions explaining Worley’s limited 

applicability. Second, the Hidalgos’ reading of Worley, even if we endorsed 

it, would be a new and novel application not “clearly established” at the time 

of the trial court’s order. 
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Citizens explained to the trial court that it sought the discovery at issue to 

explore possible bias or prejudice based on the expert’s financial and 

business relation with the Hidalgos’ lawyer. The rule contemplates discovery 

pertaining to possible bias or prejudice of an expert witness. See, e.g., Fla. 

R. Civ. P. 1.280(b)(5)(A)(iii) (permitting, inter alia, discovery of an expert

regarding (1) compensation; (2) percentage of work performed for plaintiffs 

and defendants; (3) identity of other cases within a reasonable time in which 

the expert has testified; and (4) an approximation of the expert’s involvement 

as an expert witness, based on time spent, percentage of time, or 

percentage of income earned as an expert witness). 

However, additional discovery to explore the potential bias of an expert

witness requires a showing of “the most unusual or compelling 

circumstances.” Id. The record on review demonstrates no such 

circumstances and, consequently, the order on review contains no such 

findings. Accordingly, we grant the petition in part and quash the order under 

review to the extent it compels production of documents not enumerated in 

Rule 1.280(b)(5)(A). 
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MILLER, J., (specially concurring).

In light of our precedent, I am constrained to align myself with the 

majority view that requiring the expert to produce a document demonstrating 

the cumulative amount of money received from the plaintiff’s law firm within 

a finite time period runs afoul “of a clearly established principle of law 

resulting in a miscarriage of justice.” Allstate Ins. Co. v. Hodges, 855 So. 2d 

636, 639-40 (Fla. 2d DCA 2003) (citation omitted). Nonetheless, echoing the 

concerns raised by Justice Polston in his dissent in Worley, I write separately 

to emphasize that shielding the disclosure of this highly probative discovery 

perpetuates the “charades in trials,” of which the Florida Supreme Court 

presciently warned in Boecher. 733 So. 2d at 998 (citation omitted).

As the trial court aptly recognized, from time immemorial, the 

remuneration of testifying experts has been a proper subject of inquiry. 

Indeed, “[t]he common law at one time disqualified from testifying all parties 

and others with any pecuniary or proprietary interest in the outcome of a 

suit.” 27 Charles Alan Wright, et al., Federal Practice and Procedure § 6005 

(2d ed. 2007). Exclusion of such testimony was supported by “[t]he theory 

. . . that [the] witnesses were inclined by self-interest toward perjury.” Id. 

Disqualification, however, soon fell out of favor, and attacks on witness 

credibility became the normative course of action. Id.
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Nevertheless, the use of paid expert witnesses continued to yield some 

degree of cynicism. In 1858, the United States Supreme Court observed 

that “opposite opinions of persons professing to be experts may be obtained 

to any amount.” Winans v. New York & Erie R.R. Co., 62 U.S. 88, 101 

(1858). Nearly a decade later, Judge John P. Taylor similarly opined,

Perhaps the testimony which least deserves credit with a jury is 

that of skilled witnesses. These gentlemen are usually required 

to speak, not to facts, but to opinions; and when this is the case, 

it is often quite surprising to see with what facility, and to what an 

extent, their views can be made to correspond with the wishes or 

the interests of the parties who call them.

John P. Taylor, A Treatise on the Law of Evidence as Administered in 

England and Ireland § 50 at 72 (4th ed. 1864). And, by the turn of the 

twentieth century, Judge Learned Hand bluntly described the expert as “a 

hired champion of one side.” Learned Hand, Historical and Practical 

Considerations Regarding Expert Testimony, 15 Harv. L. Rev. 40, 53 (1901).

Many contemporary judges and scholars continue to espouse these 

views, including Wigmore, who noted the “distrust of the expert witness, as 

one whose testimony is shaped by his bias for the party calling him.” 2 John 

H. Wigmore, Evidence in Trials at Common Law § 563 at 761 (1979).

Despite these sentiments, it is indisputable that expert testimony 

remains both powerful and compelling. Consequently, modern trials 

routinely devolve into so-called “battles of the experts,” and serving as an 
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expert witness has “become more lucrative than the usual day job for many 

professionals.” Kendall Coffey, Inherent Judicial Authority and the Expert 

Disqualification Doctrine, 56 Fla. L. Rev. 195, 196 (2004); see Rossi v. 

Brown, 581 So. 2d 615, 617 (Fla. 5th DCA 1991) (“[A] ‘battle of the experts’ 

has become the norm in modern trials. Courts [or a jury] must resolve the 

issues upon which the experts differ.”); Neil D. Kodsi, Confronting Experts 

Whose Opinions Are Neither Supported Nor Directly Contradicted by 

Scientific Literature, 80-JUN Fla. B.J. 80, 80 (2006) (“In complex litigation, 

cases are often won or lost based on who wins the ‘battle of the experts.’”). 

Thus, the exposure of potential financial bias is a vital tool for undermining 

expert credibility. 

Financial bias cannot be measured by viewing a single instance of 

compensation in isolation. Rather, evidence of a longstanding, lucrative 

relationship, from which an expectation of future referrals and an attendant 

revenue stream flows serves as a far better barometer. As was articulated 

by the Florida Supreme Court over two decades ago in Boecher, 

A jury is entitled to know the extent of the financial connection 

between the party and the witness, and the cumulative amount a 

party has paid an expert during their relationship. A party is 

entitled to argue to the jury that a witness might be more likely to 

testify favorably on behalf of the party because of the witness's 

financial incentive to continue the financially advantageous 

relationship. 
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Any limitation on this inquiry has the potential for thwarting the 

truth-seeking function of the trial process. . . . To limit this 

discovery would potentially leave the jury with a false impression 

concerning the extent of the relationship between the witness 

and the party by allowing a party to present a witness as an 

independent witness when, in fact, there has been an extensive 

financial relationship between the party and the expert. This 

limitation thus has the potential for undermining the truth-seeking 

function and fairness of the trial. 

733 So. 2d at 997-98 (citation omitted).

In the instant case, the discovery sought to ascertain the cumulative 

amount of compensation the law firm paid the expert over a three-year 

period. As established by the preceding principles, this sum was indubitably 

relevant to demonstrate financial bias. The fact that the request was directed 

at payments between law firm and expert, rather than party and expert, is a 

difference without a distinction. Any firm is “a repeat player in the judicial 

system,” thus, the experts “it uses on a regular basis may have a financial 

incentive that a jury is entitled to know about and evaluate for potential bias.” 

Worley, 228 So. 3d at 30 (Polston, J., dissenting) (citation omitted). 

As the majority correctly holds, however, the methodology employed 

by the insurer in this case was procedurally improper under Elkins v. Syken, 

672 So. 2d 517 (Fla. 1996), Florida Rule of Civil Procedure 1.280(b)(5), and 

other applicable authority. This confluence of rule and precedent constructs 

a virtually impenetrable barrier against “financial connection” and 
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“cumulative amount” discovery from experts retained by the plaintiff. See

Elkins, 672 So. 2d at 520 (affirming this court’s determination that “the 

[expert] should not be required to disclose the amount of money earned from 

expert witness work or to disclose his or her total income”); Worley, 228 So. 

3d at 23 (“[T]he relationship between a law firm and a plaintiff's treating 

physician is not analogous to the relationship between a party and its 

retained expert” and is therefore not discoverable.); Fla R. Civ. P. 

1.280(b)(5)(A) (“An expert may be required to produce financial and 

business records only under the most unusual or compelling 

circumstances.”). Yet, at the same time, Boecher expressly authorizes a 

plaintiff to demand the identical discovery from a party insurer. 733 So. 2d 

at 997. 

This disparity in result inexorably places the insurer on unequal footing 

with the plaintiff without conferring any corresponding benefit. This should 

raise concern in the minds of those committed to the adage “sauce for the 

goose is sauce for the gander,” Sharp v. State, 221 So. 2d 217, 219 (Fla. 1st 

DCA 1969), as any unsound disadvantage in litigation threatens the integrity 

of the truth-seeking process.