Pitts v. Neptune

Pitts v. Neptune

1st DCA, 3/6/24

1D2022-0960, 2024 WL 956908

Judge Long

Topics: Attorney Fees, Bias, Attorney-Client Privilege, Discovery, Expert Witness, Writ of Certiorari

Quick Take: The First DCA applied Worley v. Cent. Fla. Young Men's Christian Ass'n, Inc., 228 So. 3d 18 (Fla. 2017), which held that a lawyer’s referral of a client to a treating physician and the financial relationship between a non-party law firm and a plaintiff’s treating physician, is not discoverable. The DCA held that Worley did not bar a trial court from ordering discovery of the total amount of money paid by Plaintiffs attorney to “hybrid treating physician” expert witnesses, treating physicians who planned to testify about medical records of other physicians and who were provided with “litigation binders” to prepare for trial. Essentially, testifying beyond their own treatment of the patient cost them their status as treating physicians and opened the door to financial discovery.

Judge Tanenbaum’s concurrence opined that discovery orders based on court rules (such as “overbroadness” objections) rather than constitutional or statutory rights can never qualify for certiorari relief. He opined that the attorney-client and privacy arguments were not proper because the appendix to the cert petition did not show objections or privilege logs asserting those type of objections. He also opined (dissenting from the majority’s provisional grant of fees to Respondents) that trial courts, not appellate courts, are the courts with jurisdiction to award or deny fees from an original writ proceeding, which he does not view as appellate fees.

Full Take: A defendant sought “financial bias” discovery related to the relationship between Plaintiffs’ law firm, Morgan & Morgan, P.A., and what Plaintiffs refer to as its “hybrid expert/treating physicians.” Petitioners refused, claiming privilege under Worley v. Cent. Fla. Young Men's Christian Ass'n, Inc., 228 So. 3d 18 (Fla. 2017). The trial court granted the discovery order.

Plaintiffs filed a petition for certiorari, asking for the discovery order to be quashed.

The obtain cert relief, a petitioner must show that the order below will result in a material injury that cannot be corrected on post-judgment appeal. The correctability is a jurisdictional question and must be considered first.

The DCA observed: “To the extent that Worley remains,” it said that a lawyer's referral of a client to a treating physician was a confidential communication protected by the attorney-client privilege. It also limited discovery of the financial relationship between a non-party law firm and a plaintiff's treating physician. But the DCA states that Worleyaddressed only treating physicians, not experts. While an expert witness assists the jury to understand the facts, a treating physician testifies as a fact witness ‘concerning his or her own medical performance on a particular occasion and is not opining about the medical performance of another. Treating physicians do not acquire their expert knowledge for the purpose of litigation but rather simply in the course of attempting to make their patient well.

What a party labels a witness “matters little.” The trial court distinguished Worley because Petitioners’ “hybrid experts/treating physicians” were acting as experts retained for the purpose of trial. And the DCA agreed. The physicians were given litigation binders that contained various medical records from Petitioners’ other providers, and the experts planned to offer testimony based on their review of those records and their treatment of Petitioners. The DCA stated that this was the work of an expert witness, not an ordinary treating physician, so Worley did not apply to bar financial discovery.

The DCA held that the trial court’s order failed both prongs of cert review in that no clearly established principle of law was violated, and there was no harm that could not be corrected on appeal. DISMISSED.

JUDGE TANENBAUM CONCURRED IN PART AND DISSENTED IN PART, writing that in order to meet the test for irreparable harm, there must be an infringement of some constitutional or statutory right. The trial court ordered Plaintiffs to

produce complete responses to Defendant's discovery requests for any individual identified in Plaintiff's Expert Witness Disclosure as a witness from whom Plaintiff intends to elicit expert opinions at the time of trial, including “hybrid treating physician” expert witnesses. [Plaintiffs] shall produce a response to [Defendant's] financial bias discovery requests, to include the total amount of money paid by Morgan and Morgan, P.A. to [Petitioners’] listed expert witnesses, including “hybrid treating physician” expert witnesses.

Judge Tanenbaum opines that even if Worley could be read to suggest that this request at least in part seeks to uncover information that is beyond the scope of permissible discovery under Florida Rule of Civil Procedure 1.280(b), the violation of a court rule does not involve a “substantive right,” and there is no constitutional or statutory right against being burdened with the expense and inconvenience of responding to overbroad discovery. He opines that overbreadth of a discovery order can never be a basis for cert review.

In regard to the attorney-client privilege argument or some right to privacy or confidentiality regarding health information and medical records, those are substantive rights, but Judge Tanenbaum opines that the Plaintiffs fail to identify, with specificity, what privileged communications or other confidential information are presently subject to compelled disclosure by the court's order. The order did not overrule any objection to disclosure of information claimed to be protected. The appendix was devoid of a privilege log setting out objectionable documents qualifying for protection from disclosure. The appendix lacked any deposition transcripts that reveal certified privilege objections that the trial court has overruled. Judge Tanenbaum opines that general claims of privilege or confidentiality do not suffice to identify the substantive harm requiring an immediate remedy from the court under the constitution.

Judge Tanenbaum dissented from the majority’s “provisional” grant of a prevailing party attorney fees, arguing that a “provisional” grant is no grant at all. (NOTE: Provisional grants of fees are routinely ordered because only the appellate court can award appellate fees, but some fees are only triggered by a proposal for settlement and/or by prevailing in the entire case. By the time that condition is met, however, an interlocutory appeal or writ proceeding is finished, and if the party did not obtain fee entitlement from the appellate court, a court may decide that he cannot claim the fees from the trial court). Judge Tanenbaum opines that there is no authorization for any award of fees at this stage of the case. Section 768.79(1), Florida Statutes, does authorize an award of fees if certain conditions are met after there is a “judgment.” Section 57.46, though, states that “any provision of a statute…providing for the payment of attorney's fees to the prevailing party shall be construed to include the payment of attorney's fees to the prevailing party on appeal.” He opines there is no
“appeal” here, that it’s an original writ proceeding, and that a “declaration of the obvious from this court”—that the respondent has prevailed in a writ proceeding that has been dismissed—is not required for the trial court to make the appropriate assessment of awardable fees under section 768.79 if the respondent succeeds in the case below. He thinks that the court should deny the motion for attorney's fees because this court lacks the statutory basis even to consider the request.

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