“Good For The Goose Is Good For The Gander” Argument Does Not Apply To BoecherPersonal Injury
In the case of Steven Younkin v. Nathan Blackwelder, Case Number 5D18-3548 (Fla. 5th DCA February 22, 2019), Florida’s Fifth DCA held that the argument of “what is good for the goose is good for the gander” does not apply to Boecher discovery for a plaintiff. Instead, unless the law gets changed, Boecher only applies to the defense’s experts who are paid for by an insurance company.
What Happened At The Trial Court
This case began as Blackwelder sued Younkin for personal injuries arising from a car accident. Younkin had insurance with Allstate, who provided a lawyer and paid for the defense of the case. Defense counsel for Younkin retained an orthopedic surgeon to perform a compulsory medical examination (CME) pursuant to Fla. R. Civ. P. 1.360.
Blackwelder, as the plaintiff in the case, sought discovery under Allstate Ins. Co. v. Boecher, 733 So. 2d 993 (Fla. 1999) as to how frequently Allstate and defense counsel used this particular expert. In response, defense counsel for Younkin objected to the request and moved for a protective order.
The trial judge disagreed with defense counsel and ordered that defense disclose how frequently the expert had been used by Allstate. Allstate (through Younkin) appealed.
What Happened On Appeal
The Fifth DCA cited Vazquez v. Martinez, 175 So. 3d 372 (Fla. 5th DCA 2015) for the proposition that the frequency of testimony is permissible “to assist counsel in impeaching examining physicians and other experts by demonstrating that the expert has economic ties to the insurance company or defense law firm.” Thus, the trial judge was correct in denying a protective order to defense counsel.
In State Farm Mut. Auto. Inc. Co. v. Knapp, 234 So. 3d 843 (Fla. 5th DCA 2018), it was observed that there is a “seemingly disparate treatment” in personal injury cases between plaintiffs and defendants with regard to Boecher discovery as “full disclosure” is required of personal injury defendants and insurers while plaintiffs are not required to do so.
Allstate argued that this is unfair, however, the Fifth DCA stated that “this appears to be the present status of the law” (referring to different treatment of plaintiffs versus insurance based defendants). The Fifth DCA certified a question of great public importance to the Florida Supreme Court. It remains to be seen whether this issue will be entertained.
And Now For The Real Truth…
The “goose v. gander” argument is a favorite among insurance defense attorneys in Florida. To an outside observer, it is natural to want to believe that all legal rules should apply blindly in order to be fair.
However, for those of us who fight our battles against insurance companies in the courtroom, we know that a real person’s fight against an insurance company is anything but fair. Insurance companies have billions upon billions of dollars to fund litigation. That is what insurance companies do in many cases rather than pay claims (as they arguably should).
On the other hand, a person injured in a car accident may only find themselves in court one time over the course of a whole lifetime. That person also has no idea of what doctors they may need to go to or what testimony those doctors might give.
If you contrast that with an insurance company, you will see that insurance companies hire the same experts over and over again (and are often paid six or seven figures over periods of just a few years). The purpose of Boecher discovery is to try to expose the defense expert’s potential financial bias after being retained in hundreds or thousands of cases by the same insurance companies.
That is why Boecher only applies to defendants and their insurance companies. You should also remember that an insurance company has total control over the defense of a case so long as the damages are within the policy limits or the insurance company agrees to indemnify the insured up to the “blue sky.” Therefore, someone who has been sued does not get the right to instruct their insurance company to settle whereas a plaintiff’s attorney must obey his or her client’s order to settle.
This is a very important distinction in the game of litigation. Whoever has control holds all the cards. Likewise, it is completely irrelevant that any number of other clients of a plaintiff’s law firm has been to a certain doctor as the clients have all been different and have individualized injuries. This is simply a scenario where plaintiffs and defendants are inapposite and “goose v. gander” is not justice.
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If you have sustained a personal injury and need a personal injury lawyer to help you with your case, you should contact us for a free consultation. Our office is located in Lakeland, Florida to help you with your Florida personal injury lawsuit.