### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT July Term 2014

NEIL BROWN
, Petitioner

,

v.

ESTHER MITTELMAN
, Respondent

.

No. 4D 14

- 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.

P ER C URIAM

.

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 di scoverable 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 a rising 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 (“Lyt al Reiter”) joined as Ms. Goldstein’s co

- counsel. Defendant/r espondent subsequently subpoena ed the person with the

most billing knowledge at Dr. Brown’s office to produce documents regarding patients previously represented by both law firm s , LOP cases

,

an d referrals from the plaintiff’s attorneys. The trial court overruled Dr.2

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 th ere 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 po tential

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

trea ting doctor and the referring law firm. See Allstate In s . 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 benefic ial relationship continuing

. ”).

The discovery available under rule 1.280(b)(5) does not compel full disclosure of a treating physician’s potenti al 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)(i ii)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

. R ule 1.280(b)(5) neither addresses nor circumscribe s 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. Redir on Fabrication, Inc.

, 76 So. 3d 1060, 1064 (Fla. 4th DCA 2011), we recognized a “direct referral by the lawyer to the doctor” a s one circumstance that creates a potential for bias.
However, c ontrary 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 in3

119 So. 3d 1284 (Fla. 4th DCA 2013) (recognizing that the potential bias arising from a letter of protection exists independent of any refer ral 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 pla intiff to Dr. Brown makes no difference.

S imilar 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 &

Gr eene, P.A. v. GEICO Gen. Ins. Co. , 103 So. 3d 200, 20 3

– 0 4 (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. a t 547

, and could

sim ilarly 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 relationsh ip, 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, t he trial court did no t 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 poss ible bias or the reasonableness of the charges at issue in the litigation. See Rediron Fabrication, Inc. , 76 So. 3d at 106 4

. 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

, “ r ather 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.4

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 discover y 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 D enied

.

D AMOORGIAN
, C.J., W ARNER and T AYLOR , JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.