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. 
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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., 

1 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.