Steinger, Iscoe & Greene, P.A. v. GEICO General Insurance Co.

103 So. 3d 200, 2012 Fla. App. LEXIS 20208, 2012 WL 5870041
CourtDistrict Court of Appeal of Florida
DecidedNovember 21, 2012
DocketNo. 4D11-4162
StatusPublished
Cited by9 cases

This text of 103 So. 3d 200 (Steinger, Iscoe & Greene, P.A. v. GEICO General Insurance Co.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Steinger, Iscoe & Greene, P.A. v. GEICO General Insurance Co., 103 So. 3d 200, 2012 Fla. App. LEXIS 20208, 2012 WL 5870041 (Fla. Ct. App. 2012).

Opinion

DAMOORGIAN, J.

The law firm, Steinger, Iscoe & Greene, and its client, Tiffany Washington, petition this court for a writ of certiorari to quash a trial court order that compelled the firm to produce discovery pertaining to the law firm’s relationship with a treating physician. For the reasons hereinafter discussed, we grant the petition and remand for further proceedings. This case presents a complicated web of interests, involving the confidences of doctors and their patients, and attorneys and their clients. Those interests must be weighed against the right of a party in a personal injury action to discover the nature and extent of the relationship between a treating physician and counsel for the party calling the doctor.

By way of background, the law firm represents Washington, the plaintiff in a claim against GEICO for uninsured motorist coverage. During pre-trial discovery, GEICO propounded standard expert interrogatories to plaintiff. Washington objected on the grounds that the interrogatories were unduly burdensome, and, in any event, she had not retained any experts. GEICO filed a motion to compel better answers to the interrogatories. At the hearing on the motion, plaintiffs counsel admitted that some of the treating physicians would render expert opinions on matters such as causation, permanency, and future damages. The trial court granted the motion.

[203]*203A series of motions and hearings followed, which led to GEICO seeking to depose the law firm’s office manager in order to obtain information, including documents, relating to the nature and extent of the relationship between the law firm and the treating physicians. These are the same physicians who plaintiff admitted would also be rendering expert opinions. All of the requests sought information concerning the financial dealings between the law firm and plaintiffs health care providers. The production requests included: (1) all records of payments by the firm to the four medical providers; (2) all “Letters of Protection” to those providers; (8) all phone records between the firm and the four providers; and (4) all deposition and trial transcripts of those individuals or entities in the firm’s possession. The firm moved for a protective order, arguing among other things that the request invaded the privacy of non-party patients and violated the attorney-client privilege of the law firm’s former clients. Additionally, production of such documents would require extensive manual review of thousands of confidential files, which would be burdensome and expensive.

The trial court denied the motion for protective order as to categories one, two and four, but allowed the firm to redact the names of clients in cases that settled or where no lawsuit was filed. Any documents subject to privilege objections were to be produced under seal with a privilege log provided to the court. This petition follows.

Because the order compels “production of otherwise private financial information [and records] from a non-party [who] has no right to appeal” from a final order, we have jurisdiction. Katzman v. Rediron Fabrication, Inc., 76 So.3d 1060, 1062-68 (Fla. 4th DCA 2011).

In the context of a personal injury action, this case raises two significant issues: (1) when is a treating physician an expert subject to expert interrogatories; and (2) when does the nature of the relationship between a law firm and a treating physician raise the spectre of financial bias sufficient to warrant discovery from the law firm and discovery beyond that generally allowed from an expert.

The evidence code allows a party to attack a witness’s credibility based on bias. § 90.608(2), Fla. Stat. (2012). A treating physician, like any other witness, is subject to impeachment based on bias. See Tobin v. Leland, 804 So.2d 390, 394 (Fla. 4th DCA 2001)(identifying some areas of bias that should be subject to inquiry including “involvement in the instant litigation or other pending litigation involving the parties [and] past or present employment relationship[s]”). Thus, discovery aimed at producing evidence of a treating physician’s bias is permissible.

For purposes of uncovering bias, we see no meaningful distinction between a treating physician witness, who also provides an expert opinion (the so-called “hybrid witness”), and retained experts.1 As Judge Torpy explained in his concurrence [204]*204in State Farm Mutual Automobile Insurance Co. v. German, 12 So.3d 1286 (Fla. 5th DCA 2009):

[A] treating physician who devotes a substantial portion of his or her practice to expert testimony on behalf of plaintiffs might have a bias towards plaintiffs just as a retained expert, and inquiry at trial to expose that potential bias is permitted. It logically follows that pretrial discovery is permissible to uncover evidence of bias for all the same reasons that discovery on any trial issue is permitted. The extent to which discovery is permitted on this issue is a function of balancing its importance against the burden of providing the discovery.

Id. at 1287 (Torpy, J., concurring). Rule I.280(b)(5)(A)(iii)2 derives from Elkins v. Syken, 672 So.2d 517, 521-22 (Fla.1996), and limits financial bias discovery from retained experts. While the rule was drafted to protect retained experts only, and was not intended to limit discovery from a treating physician, a treating physician expert is entitled to similar protection from overly intrusive general financial bias discovery.

Typically, “the correct balance [for bias discovery from the so-called hybrid witness] is the same balance contained in the rule for all other experts because there is no logical distinction between treating physicians and retained experts for purposes of uncovering this type of information.” German, 12 So.3d at 1288 (Torpy, J., concurring). Thus, under ordinary circumstances, a defendant may discover from a plaintiffs treating physician the type of general financial bias information set out in Rule 1.280(b)(5)(A)(iii).3

We do not suggest that all financial discovery from a physician who also serves as an expert in litigation must always be strictly limited to those matters listed in Rule 1.280(b)(5)(A). We stress that the limitations on financial bias discovery from expert witnesses cannot be used as a shield to prevent discovery of relevant information from a material witness — such as a treating physician. The rule limits discovery of the general financial information of the witness where it is sought solely to establish bias. However, trial courts have discretion to order additional discovery where relevant to a discrete issue in a case. See Rediron, 76 So.3d at 1064-65. In each case, the trial court must balance the need for the discovery against the burden placed upon the witness. Katzman v. Ranjana Corp., 90 So.3d 873, 876 (Fla. 4th DCA 2012)(recog-nizing “that each case raising these issues should be decided on its own facts and circumstances”).

Here, we are confronted with a discovery request to a non-party law firm, seeking bias discovery regarding the firm’s ongoing relationship with plaintiffs treating health care providers. GEICO argues that it and its legal counsel have long been required to provide similar discovery and to maintain records of past dealings with experts. See Allstate Ins. Co. v. Boecher, [205]

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Heather Worley v. Central Florida Young Men's Christian, etc.
228 So. 3d 18 (Supreme Court of Florida, 2017)
Worley v. Central Florida Young Men's Christian Ass'n
163 So. 3d 1240 (District Court of Appeal of Florida, 2015)
Orthopedic Center v. Devon Parks
155 So. 3d 377 (District Court of Appeal of Florida, 2014)
Neil Brown v. Esther Mittelman
152 So. 3d 602 (District Court of Appeal of Florida, 2014)
Lytal, Reiter, Smith, Ivey & Fronrath, L.L.P. v. Malay
133 So. 3d 1178 (District Court of Appeal of Florida, 2014)
Pack v. Geico General Insurance Co.
119 So. 3d 1284 (District Court of Appeal of Florida, 2013)
Carnival Corp. v. Jimenez
112 So. 3d 513 (District Court of Appeal of Florida, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
103 So. 3d 200, 2012 Fla. App. LEXIS 20208, 2012 WL 5870041, Counsel Stack Legal Research, https://law.counselstack.com/opinion/steinger-iscoe-greene-pa-v-geico-general-insurance-co-fladistctapp-2012.