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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