Southern Bell Tel. and Tel. Co. v. Kaminester
| Decision Date | 30 June 1981 |
| Docket Number | No. 80-1382,80-1382 |
| Citation | 400 So.2d 804 |
| Parties | SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY, etc., Appellant, v. Lewis H. KAMINESTER, M. D., P. A., a Florida Corporation, Appellee. |
| Court | Florida District Court of Appeals |
Walton, Lantaff, Schroeder & Carson and George W. Chesrow, Miami, for appellant.
Robinson & Greenberg and Daniel K. Bandklayder and Barry N. Greenberg, Miami, for appellee.
Before BARKDULL, SCHWARTZ and FERGUSON, JJ.
Southern Bell Telephone and Telegraph Company appeals from a jury determination of damages finding it liable to appellee, Lewis H. Kaminester, M.D., P.A., a Florida corporation, in the amount of $92,929.00 for a breach of contract in incorrectly listing the doctor's address in the 1977 Greater West Palm Beach Yellow Pages and in the 1977 Hobe Sound-Jupiter Yellow Pages. 1 We reverse.
Appellee, Lewis H. Kaminester, M.D., P.A., is a Florida corporation licensed to practice medicine in Florida. Dr. Kaminester, a dermatologist, is the principle employee and sole officer of the corporation. At the trial on damages, the appellee-corporation relied on the testimony of Dr. Kaminester and the corporation's accountant to establish loss of net profits. This testimony was based on information contained in patient interview sheets which each new patient was asked to fill out during his first office visit. The first sheet includes the question as to who the new patient was "referred by" and the second sheet provides space for the doctor's diagnosis and description of treatment. The patient interview sheets indicated directory referrals as follows:
The accountant subtracted 29 from the mean of the 1976 and 1978 referrals to arrive at the number of 144 patients who should have been referred by the directories if the listings had been correct. Based on the medical information on the 165 referred-patient interview sheets of 1976, the patients were divided into seven disease categories. The calculated 144 lost patients were then assigned the same percentage of disease categories as the 1976 referrals. Lost profits were determined on the projected treatments and length of treatment for the number of "lost" patients assigned to each disease category. "Lost" acne patients, for example, were projected to seek treatment every three weeks for three to five years, "lost" psoriasis patients to seek treatment for three to four years, and "lost" skin cancer patients would have to return "somewhat." The accountant projected a loss of gross fees of $100,230.00 due to the directory error. He subtracted eight percent for lab fees, office and medical supplies to reach a net figure of $92,212.00. Expenses of $717.00 for advertising expenses in 1977 were then added for a projected loss of net profits of $92,929.00.
As its first issue on appeal, Southern Bell claims that the trial court abused its discretion in admitting the original patient interview sheets into evidence after precluding defendant from discovering the exhibits prior to trial.
We find applicable to the case the statement of the court in International Telephone and Telegraph Corporation v. United Telephone Company of Florida, 60 F.R.D. 177, 186 (M.D.Fla.1973) that:
(T)he failure of a party to allow pretrial discovery of confidential matters which that party intends to introduce at trial will preclude the introduction of that evidence.
See, e. g., Backos v. United States, 82 F.R.D. 743, 745 (E.D.Mich.S.D.1979); Duffy v. Currier, 291 F.Supp. 810, 815 (D.Minn.1968); A & M Records, Inc. v. Heilman, 75 Cal.App.3d 554, 142 Cal.Rptr. 390, 397-398 (1977).
In July of 1978, Southern Bell requested that the appellee corporation produce "any and all patient interview sheets from July 1975 to the present." Appellee subsequently moved for a protective order asserting that the sheets contained confidential and privileged medical information. The order was granted by the court. Although Southern Bell was later permitted to copy the names, numbers and addresses of those referred by the directories, Southern Bell was not permitted, despite requests, to see a copy of the patient interview sheets containing the medical information until the evening after the first day of trial on May 7, 1980. The trial judge had rejected all earlier attempts of Southern Bell to discover the medical information and, in addition, had ruled during pretrial discovery that the patient interview sheets containing the medical information would not be admitted into evidence. The trial judge stated:
The point is, what you did was choose to protect the privilege of the patient when it suited your purpose and to ignore it when it did not suit your purpose, and to the extent that you did so, that is fine, except I am now not going to let you saddle the other side with the burden of not having been able to inquire on the basis of it.
At trial, however, the trial judge reversed himself so that the court would not, in his words, end up "with a totally inaccurate set of figures." The court then stated that if Southern Bell desired to view the sheets it could do so that evening. After viewing the patient interview sheets, Southern Bell's expert informed the court the next morning that at least one week would be required to examine the four thousand to five thousand patient interview sheets.
Though we agree with the appellee-corporation that the calculation of damages by percentage breakdown of patients by...
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