Neil Brown v. Esther Mittelman

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2014

NEIL BROWN,

Petitioner,

v.

ESTHER MITTELMAN,

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).

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).

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.

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.”).

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.

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.,

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We 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

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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.

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.

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

Rediron Fabrication, Inc. We did not restrict discovery to the specific

circumstances of Rediron Fabrication, Inc.

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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.

Petition Denied.

DAMOORGIAN, C.J., WARNER and TAYLOR, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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