39 Fla. L. Weekly D1806a
Torts — Automobile accident — Discovery — Financial relationship between
treating doctor and plaintiff’s attorneys in present and past cases — Trial
court did not depart from essential requirements of law in overruling treating
physician’s objections to subpoena requesting documents regarding patients
previously represented by law firms representing plaintiff, letter of protection
cases, and referrals from plaintiff’s attorneys, which discovery sought to
uncover ongoing relationship between doctor and plaintiff’s lawyers that might
bias doctor to provide favorable testimony for the plaintiff — Discovery was
limited to reasonable time frame, and was not overly intrusive
treating doctor and plaintiff’s attorneys in present and past cases — Trial
court did not depart from essential requirements of law in overruling treating
physician’s objections to subpoena requesting documents regarding patients
previously represented by law firms representing plaintiff, letter of protection
cases, and referrals from plaintiff’s attorneys, which discovery sought to
uncover ongoing relationship between doctor and plaintiff’s lawyers that might
bias doctor to provide favorable testimony for the plaintiff — Discovery was
limited to reasonable time frame, and was not overly intrusive
NEIL BROWN, Petitioner, v. ESTHER MITTELMAN, Respondent. 4th District. Case
No. 4D14-1748. August 27, 2014. Petition for writ of certiorari to the
Seventeenth Judicial Circuit, Broward County; Michael L. Gates, Judge; L.T. Case
No. 12-22043 (12). Counsel: Sanford R. Topkin of Topkin & Partlow, P.L.,
Deerfield Beach, for petitioner. Warren Kwavnick of Cooney Trybus Kwavnick
Peets, Fort Lauderdale, for respondent.
No. 4D14-1748. August 27, 2014. Petition for writ of certiorari to the
Seventeenth Judicial Circuit, Broward County; Michael L. Gates, Judge; L.T. Case
No. 12-22043 (12). Counsel: Sanford R. Topkin of Topkin & Partlow, P.L.,
Deerfield Beach, for petitioner. Warren Kwavnick of Cooney Trybus Kwavnick
Peets, Fort Lauderdale, for respondent.
(Per Curiam.) Non-party, Dr. Neil Brown, petitions this court for a writ of
certiorari to quash a discovery order denying his objections to a subpoena duces
tecum. Because Florida Rule of Civil Procedure 1.280(b)(5) does not apply to the
requested discovery, and because “[a] law firm’s financial relationship with a
doctor is discoverable on the issue of bias,” we deny the petition. See
Lytal, Reiter, Smith, Ivey & Fronrath, L.L.P. v. Malay, 133 So. 3d 1178,
1178 (Fla. 4th DCA 2014).
certiorari to quash a discovery order denying his objections to a subpoena duces
tecum. Because Florida Rule of Civil Procedure 1.280(b)(5) does not apply to the
requested discovery, and because “[a] law firm’s financial relationship with a
doctor is discoverable on the issue of bias,” we deny the petition. See
Lytal, Reiter, Smith, Ivey & Fronrath, L.L.P. v. Malay, 133 So. 3d 1178,
1178 (Fla. 4th DCA 2014).
The underlying litigation is a negligence action arising from an automobile
accident. The plaintiff’s attorney, Cindy Goldstein, referred the plaintiff to
Dr. Brown, who treated the plaintiff under a letter of protection (“LOP”)
agreement. The law firm of Lytal, Reiter, Smith, Ivey & Fronrath, LLP
(“Lytal Reiter”) joined as Ms. Goldstein’s co-counsel. Defendant/respondent
subsequently subpoenaed the person with the most billing knowledge at Dr.
Brown’s office to produce documents regarding patients previously represented by
both law firms, LOP cases, and referrals from the plaintiff’s attorneys. The
trial court overruled Dr. Brown’s objections to the subpoena and compelled
discovery of the requested documents. Dr. Brown now petitions this court to
quash the discovery order, arguing that rule 1.280(b)(5) prohibits this
discovery and that his relationship with Lytal Reiter is not discoverable
because there is no evidence that the firm directly referred the plaintiff to
Dr. Brown.
accident. The plaintiff’s attorney, Cindy Goldstein, referred the plaintiff to
Dr. Brown, who treated the plaintiff under a letter of protection (“LOP”)
agreement. The law firm of Lytal, Reiter, Smith, Ivey & Fronrath, LLP
(“Lytal Reiter”) joined as Ms. Goldstein’s co-counsel. Defendant/respondent
subsequently subpoenaed the person with the most billing knowledge at Dr.
Brown’s office to produce documents regarding patients previously represented by
both law firms, LOP cases, and referrals from the plaintiff’s attorneys. The
trial court overruled Dr. Brown’s objections to the subpoena and compelled
discovery of the requested documents. Dr. Brown now petitions this court to
quash the discovery order, arguing that rule 1.280(b)(5) prohibits this
discovery and that his relationship with Lytal Reiter is not discoverable
because there is no evidence that the firm directly referred the plaintiff to
Dr. Brown.
A party may attack the credibility of a witness by exposing a potential bias.
§ 90.608(2), Fla. Stat. (2009). The financial relationship between the treating
doctor and the plaintiff’s attorneys in present and past cases creates the
potential for bias and discovery of such a relationship is permissible. See
Morgan, Colling & Gilbert, P.A. v. Pope, 798 So. 2d 1, 3 (Fla. 2d DCA
2001); Springer v. West, 769 So. 2d 1068, 1069 (Fla. 5th DCA 2000). A
physician may derive substantial income from treating patients involved in
litigation beyond the provision of services as a retained expert. A jury is
entitled to know the extent of the relationship between the treating doctor and
the referring law firm. See Allstate Ins. Co. v. Boecher, 733 So. 2d 993,
997 (Fla. 1999) (“The more extensive the financial relationship between a party
and a witness, the more it is likely that the witness has a vested interest in
that financially beneficial relationship continuing.”).
§ 90.608(2), Fla. Stat. (2009). The financial relationship between the treating
doctor and the plaintiff’s attorneys in present and past cases creates the
potential for bias and discovery of such a relationship is permissible. See
Morgan, Colling & Gilbert, P.A. v. Pope, 798 So. 2d 1, 3 (Fla. 2d DCA
2001); Springer v. West, 769 So. 2d 1068, 1069 (Fla. 5th DCA 2000). A
physician may derive substantial income from treating patients involved in
litigation beyond the provision of services as a retained expert. A jury is
entitled to know the extent of the relationship between the treating doctor and
the referring law firm. See Allstate Ins. Co. v. Boecher, 733 So. 2d 993,
997 (Fla. 1999) (“The more extensive the financial relationship between a party
and a witness, the more it is likely that the witness has a vested interest in
that financially beneficial relationship continuing.”).
The discovery available under rule 1.280(b)(5) does not compel full
disclosure of a treating physician’s potential bias. The rule limits discovery
to “[a]n approximation of the portion of the expert’s involvement as an
expert witness” based on data such as the “percentage of earned income
derived from serving as an expert witness.” Fla. R. Civ. P.
1.280(b)(A)(5)(iii)4. (emphasis added). A physician’s continued financial
interest in treating other patients referred by a particular law firm could
conceivably be a source of bias “not immediately apparent to a jury.”
Morgan, 798 So. 2d at 3. Rule 1.280(b)(5) neither addresses nor
circumscribes discovery of this financial relationship.
disclosure of a treating physician’s potential bias. The rule limits discovery
to “[a]n approximation of the portion of the expert’s involvement as an
expert witness” based on data such as the “percentage of earned income
derived from serving as an expert witness.” Fla. R. Civ. P.
1.280(b)(A)(5)(iii)4. (emphasis added). A physician’s continued financial
interest in treating other patients referred by a particular law firm could
conceivably be a source of bias “not immediately apparent to a jury.”
Morgan, 798 So. 2d at 3. Rule 1.280(b)(5) neither addresses nor
circumscribes discovery of this financial relationship.
Whether the law firm directly referred the plaintiff to the treating
physician does not determine whether discovery of the doctor/law firm
relationship is allowed. In Katzman v. Rediron Fabrication, Inc., 76 So.
3d 1060, 1064 (Fla. 4th DCA 2011), we recognized a “direct referral by the
lawyer to the doctor” as one circumstance that creates a potential for bias.
However, contrary to Dr. Brown’s assertion, we did not intend to limit discovery
to that narrow situation.1 See, e.g.,
Pack v. Geico Gen. Ins. Co., 119 So. 3d 1284 (Fla. 4th DCA 2013)
(recognizing that the potential bias arising from a letter of protection exists
independent of any referral relationship). A doctor’s referral arrangements with
a law firm in other cases is a proper source for impeachment. Flores v.
Miami-Dade Cnty., 787 So. 2d 955, 958-59 (Fla. 3d DCA 2001). Thus, the fact
that Lytal Reiter did not directly refer the plaintiff to Dr. Brown makes no
difference.
physician does not determine whether discovery of the doctor/law firm
relationship is allowed. In Katzman v. Rediron Fabrication, Inc., 76 So.
3d 1060, 1064 (Fla. 4th DCA 2011), we recognized a “direct referral by the
lawyer to the doctor” as one circumstance that creates a potential for bias.
However, contrary to Dr. Brown’s assertion, we did not intend to limit discovery
to that narrow situation.1 See, e.g.,
Pack v. Geico Gen. Ins. Co., 119 So. 3d 1284 (Fla. 4th DCA 2013)
(recognizing that the potential bias arising from a letter of protection exists
independent of any referral relationship). A doctor’s referral arrangements with
a law firm in other cases is a proper source for impeachment. Flores v.
Miami-Dade Cnty., 787 So. 2d 955, 958-59 (Fla. 3d DCA 2001). Thus, the fact
that Lytal Reiter did not directly refer the plaintiff to Dr. Brown makes no
difference.
Similar to the protections afforded to retained experts under rule 1.280(b),
we have recognized that a treating physician witness should be protected from
overly-intrusive financial discovery. Steinger, Iscoe & Greene, P.A. v.
GEICO Gen. Ins. Co., 103 So. 3d 200, 203-04 (Fla. 4th DCA 2012). Trial
courts have broad discretion to balance the interests involved and generally
should not permit extensive discovery of a treating physician’s finances. See
Syken v. Elkins, 644 So. 2d 539, 544-45 (Fla. 3d DCA 1994), approved,
672 So. 2d 517 (Fla. 1996). Such overly-intrusive discovery creates a “chilling
effect” on the availability of experts willing to serve as witnesses in
litigation, id. at 547, and could similarly chill the willingness of
doctors to treat patients involved in litigation. This does not mean that all
relationships between law firms and treating doctors can be kept hidden from
scrutiny. In cases where there is evidence of a referral relationship, more
extensive financial discovery may be appropriate from both the law firm and the
doctor. See Steinger, Iscoe & Greene, P.A., 103 So. 3d at 206.
we have recognized that a treating physician witness should be protected from
overly-intrusive financial discovery. Steinger, Iscoe & Greene, P.A. v.
GEICO Gen. Ins. Co., 103 So. 3d 200, 203-04 (Fla. 4th DCA 2012). Trial
courts have broad discretion to balance the interests involved and generally
should not permit extensive discovery of a treating physician’s finances. See
Syken v. Elkins, 644 So. 2d 539, 544-45 (Fla. 3d DCA 1994), approved,
672 So. 2d 517 (Fla. 1996). Such overly-intrusive discovery creates a “chilling
effect” on the availability of experts willing to serve as witnesses in
litigation, id. at 547, and could similarly chill the willingness of
doctors to treat patients involved in litigation. This does not mean that all
relationships between law firms and treating doctors can be kept hidden from
scrutiny. In cases where there is evidence of a referral relationship, more
extensive financial discovery may be appropriate from both the law firm and the
doctor. See Steinger, Iscoe & Greene, P.A., 103 So. 3d at 206.
Respondent is not asking for broad financial discovery. The discovery seeks
to uncover an ongoing relationship between Dr. Brown and the plaintiff’s lawyers
that might bias the doctor to provide favorable testimony for the plaintiff. The
discovery is limited to a reasonable time frame and is not overly-intrusive.
Thus, the trial court did not depart from the essential requirements of the law
in overruling Dr. Brown’s objections.
to uncover an ongoing relationship between Dr. Brown and the plaintiff’s lawyers
that might bias the doctor to provide favorable testimony for the plaintiff. The
discovery is limited to a reasonable time frame and is not overly-intrusive.
Thus, the trial court did not depart from the essential requirements of the law
in overruling Dr. Brown’s objections.
We again emphasize that the rule limiting financial discovery from retained
experts cannot be used to hide relevant information regarding a treating
physician’s possible bias or the reasonableness of the charges at issue in the
litigation. See Rediron Fabrication, Inc., 76 So. 3d at 1064. Limiting
this discovery has “the potential for undermining the truth-seeking function and
fairness of the trial.” Boecher, 733 So. 2d at 998. As the Second
District concluded in a similar case involving discovery of the relationship
between an expert and a law firm, “rather than departing from the essential
requirements of the law, the circuit court’s order conforms to the trend
insuring fairness in the jury trial process by permitting discovery of a
financial relationship between a witness and a party or representative.”
Morgan, Colling & Gilbert, P.A., 798 So. 2d at 3.
experts cannot be used to hide relevant information regarding a treating
physician’s possible bias or the reasonableness of the charges at issue in the
litigation. See Rediron Fabrication, Inc., 76 So. 3d at 1064. Limiting
this discovery has “the potential for undermining the truth-seeking function and
fairness of the trial.” Boecher, 733 So. 2d at 998. As the Second
District concluded in a similar case involving discovery of the relationship
between an expert and a law firm, “rather than departing from the essential
requirements of the law, the circuit court’s order conforms to the trend
insuring fairness in the jury trial process by permitting discovery of a
financial relationship between a witness and a party or representative.”
Morgan, Colling & Gilbert, P.A., 798 So. 2d at 3.
Trial courts have broad discretion in controlling discovery and protecting
the parties that come before it. We generally will not exercise our certiorari
jurisdiction to interfere with that discretion and find no compelling reason to
do so here.
the parties that come before it. We generally will not exercise our certiorari
jurisdiction to interfere with that discretion and find no compelling reason to
do so here.
Petition Denied. (Damoorgian, C.J., Warner and Taylor, JJ., concur.)
__________________
1We clarify dicta in prior opinions
perceived as suggesting the contrary. In Katzman v. Ranjana Corp., 90 So.
3d 873, 876-79 (Fla. 4th DCA 2012), we merely remanded for the trial court to
consider our revised opinion on rehearing in Rediron Fabrication, Inc. We
did not restrict discovery to the specific circumstances of Rediron
Fabrication, Inc.
perceived as suggesting the contrary. In Katzman v. Ranjana Corp., 90 So.
3d 873, 876-79 (Fla. 4th DCA 2012), we merely remanded for the trial court to
consider our revised opinion on rehearing in Rediron Fabrication, Inc. We
did not restrict discovery to the specific circumstances of Rediron
Fabrication, Inc.
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