FRANK BELLEZZA v. JAMES MENENDEZ and CRARY BUCHANAN, P.A.

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
FRANK BELLEZZA,
Appellant,
v.
JAMES MENENDEZ and CRARY BUCHANAN, P.A.,
Appellees.
No. 4D17-3277
[March 6, 2019]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Martin County; William L. Roby, Judge; L.T. Case No. 15-422 CA.
Margaret M. Bichler of Trelles & Bichler, North Palm Beach, for
appellant.
Carri S. Leininger of Williams, Leininger & Crosby, P.A., N. Palm Beach,
for appellees.
MAY, J.
Protecting attorney-client privilege leads to a reversal of the final
judgment in this personal injury case. The plaintiff appeals an adverse
final judgment, arguing the trial court erred in two ways: (1) admitting
attorney-client privileged evidence; and (2) excluding similar evidence
concerning the defendant law firm. We agree on the first issue, rendering
the second issue moot, and reverse.
The claim arose from a collision between the defendant law firm’s
vehicle, driven by one of its employees, and the plaintiff who was walking
his bicycle along the street. The plaintiff sued the driver and the law firm
(“defendants”) for negligence and vicarious liability. During discovery, the
defendants requested information regarding the financial relationship
between the plaintiff’s attorney and his treating physicians. The plaintiff
objected to each request.
The trial court found the request did not seek information protected by
the attorney-client privilege. 1 The plaintiff then produced records of all
payments made between his attorney’s firm and the treating physicians,
including letters of protection.
The plaintiff moved for a protective order from the defendants’ request
to depose his attorney, arguing inquiry into his attorney’s financial
information invaded the attorney-client privilege. The court denied the
motion. The plaintiff’s attorney was deposed.
Prior to trial, the plaintiff moved in limine to preclude the admission of
his lawyer’s payments to his treating physicians based on attorney-client
privilege, relying on Worley v. Central Florida Young Men’s Christian Ass’n,
228 So. 3d 18 (Fla. 2017). The trial court denied the motion. The plaintiff
then moved the court to reconsider its ruling; the court denied the motion.
The defendants then moved to prevent comments about the defendant
law firm’s relationship with the same treating physicians. The trial court
granted that motion.
Prior to trial, defense counsel announced his intention to call the
plaintiff’s attorney as a witness. The trial court expressed concern about
whether the attorney and her co-counsel had considered Florida Bar Rule
4-3.7, which prohibits an attorney from acting as counsel and a witness
in the same case. The plaintiff’s attorney left the courtroom. When she
returned, she told the court she would no longer serve as counsel.
Plaintiff’s counsel again specifically called the court’s attention to
Worley. There, the supreme court held that certain information
concerning treating physicians and their relationship with trial counsel is
protected by attorney-client privilege and not discoverable. Worley, 228
So. 3d at 23. The trial court responded that it had already gone through
this and the “horse has left the barn.” The court denied counsel’s request
to revisit the issue.
During voir dire, defense counsel asked the jurors whether they would
have an issue with the plaintiff’s attorney’s credibility because she was
both the plaintiff’s attorney and a witness in the trial. One juror expressed
1 The court relied on existing precedent that permitted this discovery prior to the
supreme court’s decision in Worley v. Central Florida Young Men’s Christian
Ass’n, 228 So. 3d 18 (Fla. 2017). Brown v. Mittelman, 152 So. 3d 602 (Fla. 4th
DCA 2014); Lytal, Reiter, Smith, Ivey & Fronrath, L.L.P. v. Malay, 133 So. 3d 1178(Fla. 4th DCA 2014).
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that it would be foolish not to question the attorney’s credibility since she
knows too much. The plaintiff asked the court to strike the juror and
moved for a mistrial. The court struck the juror, but reserved ruling on
the motion for mistrial. The court ultimately denied the motion.
At trial, the plaintiff testified he first saw a chiropractor, and later an
orthopedist. He had neck surgery, which rendered his pain more
manageable. At the time of trial, his medical bills totaled $184,976.
He did not remember who referred him to either doctor. He did not
remember telling anyone who referred him to those doctors. However, his
cousin testified that the plaintiff told him his attorney referred him to his
treating physicians.
On cross examination, defense counsel asked the plaintiff what he
knew about his attorney’s relationship with his treating physicians. He
responded that he was unaware of any relationship. And, when asked
what he knew about his attorney paying the doctors large amounts of
money over the years, he declined any knowledge.
Before the treating orthopedist testified, the plaintiff proffered his
testimony would show the defendant law firm also referred clients to the
treating physicians. The court adhered to its prior ruling that this
evidence was irrelevant and inadmissible.
The treating orthopedist reviewed the plaintiff’s MRI, which revealed
cord compression, abnormal discs, and edema in the bone and the neck
where there was cord compression. The surgery confirmed his impression
that the MRI showed the plaintiff’s discs were very fragile. He opined the
plaintiff’s symptoms were caused by trauma from the accident; not from
age-related processes.
The orthopedist ultimately assigned a permanent impairment rating of
12% to the body as a whole. He estimated the plaintiff’s future care would
cost $3,000 to $5,000 a year. A radiologist opined the plaintiff’s symptoms
were related to the injuries from the accident, and not from other age-
related spinal changes.
A trauma neurosurgeon hired by the defendants conducted a
compulsory medical examination of the plaintiff. In reviewing the
plaintiff’s MRI, he saw no signs of trauma. He disagreed that cervical
surgery was necessary. He testified that it was “pure speculation” that the
plaintiff would need future surgery. He found the medical bills for the
cervical fusion excessive and not in line with the usual and customary fees
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for such a procedure.
Prior to the defense calling the plaintiff’s attorney as a witness, the
plaintiff renewed his motions to preclude her testimony and for mistrial.
The court denied both motions.
During her testimony, defense counsel questioned the plaintiff’s
attorney about the letters of protection, her name appearing on the
plaintiff’s medical records, and the amount of money paid by her firm’s
trust account to the treating physicians over the course of five years. She
admitted to having a personal relationship with a couple of the doctors
associated with the treating physicians. She also admitted she refers some
of her clients to those treating physicians and negotiates bills on their
behalf.
During the jury’s deliberation, it submitted the following question:
“When did the relationship between [the attorney] and plaintiff [begin]?”
The court responded the record did not indicate a date.
The jury found the defendant driver negligent, but apportioned 57½%
of the fault to the plaintiff and 42½% to the defendant. It determined
damages to be $20,916.33.
The plaintiff subsequently moved for a new trial, arguing the trial court
erred in permitting the defense to admit evidence and elicit testimony
regarding payments from his attorney’s trust account to the treating
physicians. The court denied the motion.
The trial court entered final judgment for the defendants. From this
judgment, the plaintiff now appeals.
The plaintiff argues the trial court’s errors in admitting irrelevant
financial information concerning the treating physicians, requiring his
attorney to testify, and excluding similar evidence concerning the
defendant law firm, entitle him to a new trial. The defendants respond
that any error was harmless because the plaintiff’s attorney’s limited
testimony on these issues could not have impacted the verdict.
We review orders on motions for new trial for an abuse of discretion.
Botta v. Florida Power & Light Co., 197 So. 3d 1222, 1224 (Fla. 4th DCA
2016).
The plaintiff argues the financial relationship evidence and his
attorney’s relationship with his treating physicians is not discoverable and
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was not admissible at trial. This evidence was irrelevant and created
insurmountable prejudice. The defendants respond the trial court did not
err in admitting the evidence because it did not implicate attorney-client
privileged communications and was relevant to the issue of bias.
“A trial judge’s ruling on the admissibility of evidence will not be
disturbed absent an abuse of discretion.” Hayes v. Wal-Mart Stores, Inc.,
933 So. 2d 124, 126 (Fla. 4th DCA 2006) (citation omitted). However, “[t]he
trial court’s discretion is limited by the rules of evidence.” Id. (citation
omitted).
Here, after discovery, but before trial, the Supreme Court of Florida held
that “the financial relationship between a plaintiff’s law firm and the
plaintiff’s treating physician is [not] discoverable.” Worley, 228 So. 3d at
22. In its analysis, the supreme court held that Allstate Insurance Co. v.
Boecher, 733 So. 2d 993 (Fla. 1999), which permitted the discovery of
financial information between law firms and expert witnesses, is
inapplicable to treating physicians. Worley, 228 So. 3d at 22.
The supreme court held that bias can be established by admitting
letters of protection, which can demonstrate that the physician has an
interest in the litigation’s outcome or by providing evidence that the
physician’s practice was based entirely on patients covered by letters of
protection. Id. at 23–24. But, attorney-client privilege protects whether
the plaintiff's lawyer referred the plaintiff to a particular physician. Id. at
25. Also protected are documents pertaining to agreements between a law
firm and treating physicians and the names of other clients who have been
referred to treating physicians. Id. at 25.
The defendants claim Worley is inapplicable because it deals with the
narrow issue of Boecher’s application to treating physicians, rendering
other statements in the opinion mere dicta. We disagree. While Worley
discussed the discovery issue, and not the admissibility of evidence, it is
dispositive of the issue here.
Here, pre-Worley, the trial court compelled the discovery of the
plaintiff’s attorney’s financial relationship with the various treating
physicians. The documents included: (1) payments by the plaintiff’s
attorney’s firm to the treating physicians over five years and (2) letters of
protection between the plaintiff’s attorney’s firm and the treating
physicians. The court also compelled the deposition and trial testimony
of the plaintiff’s attorney regarding these documents.
Post-Worley, that discovery is no longer permitted as it violates
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attorney-client privilege. While letters of protection may be admitted to
establish bias, any further inquiry regarding the “cozy agreement” between
a law firm and a treating physician is disallowed. Id. at 26. If that
information is not discoverable, it certainly is not admissible. 2
We similarly find error in the trial court compelling the plaintiff’s
attorney to testify at trial. While the plaintiff’s attorney was initially
identified as the person with the most knowledge of the financial records,
the firm identified an alternative individual who could testify prior to the
deposition. In compelling the plaintiff’s attorney’s testimony, the court
forced her to testify regarding her trust account, payments made to the
treating physicians, and her personal relationships with these physicians.
In short, she was compelled to testify to the prejudice of her own client.
“[Florida Rule of Civil Procedure] 1.310(b)(6) does not require—or for
that matter even contemplate—that the corporation produce the witness
with the ‘most knowledge’ on the specified topic(s), and the witness is not
required to possess any personal knowledge at all.” Carriage Hills Condo.,
Inc. v. JBH Roofing & Constructors, Inc., 109 So. 3d 329, 334 (Fla. 4th DCA
2013). The rule “gives the corporation being deposed more control by
permitting it to select and prepare a witness to testify on its behalf.” Id. at
335.
Here, however, the court compelled the attorney to attend a deposition
and testify at trial. Once this testimony was admitted, it became the
central focus of the defendants’ case. Using this evidence, the defendants
argued the attorney essentially created the lawsuit. The jury even asked
the court about the attorney’s relationship with the treating physicians
before rendering its verdict.
The plaintiff next argues the trial court erred in excluding evidence that
the defendant law firm had made similar referrals and had similar
financial relationships with the treating physicians. We agree, but
because we hold that the evidence of the plaintiff’s attorney’s referral of
the plaintiff to his treating physicians and other payments to those
physicians is protected by attorney-client privilege, it is unnecessary for
us to address this issue further. Such evidence from the defendant law
2 The defendants also argue the plaintiff waived any attorney-client privilege
when he told his cousin that his attorney referred him to his treating orthopedist.
While the plaintiff may have waived this one piece of information, he did not waive
the privilege as to his other treating physicians and his attorney’s trust account
information.
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firm is similarly protected by attorney-client privilege.
The central theme of the defendants’ case was the plaintiff’s attorney’s
financial relationship with the treating physicians. It was raised in
opening statements, throughout testimony, and in closing argument.
Because we now hold Worley prohibits the discovery and admission of
attorney-client privileged information concerning the relationship between
the plaintiff’s attorney and the treating physicians, and the financial
information concerning that relationship, we reverse and remand the case
for a new trial.
Reversed and remanded for a new trial.
GROSS and DAMOORGIAN, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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