Brown v. Mittelman, 4D14-1748

• Decision Date: 27 August 2014
• Docket Number: No. 4D14-1748,4D14-1748
• Parties: NEIL BROWN, Petitioner, v. ESTHER MITTELMAN, Respondent.
• Court: Florida District Court of Appeals

NEIL BROWN, Petitioner,
v.
ESTHER MITTELMAN, Respondent.

No. 4D14-1748

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT

July Term 2014
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...