Cases

The trial judge overruled the defendant’s objection to compelling an expert witness to produce
documents showing how much income she earned from such witness services in the previous
year. The district court reversed. The district court noted that the Florida Rule of Civil Procedure laid out what expert witnesses must disclose and that anything beyond that required “compelling circumstances.” The plaintiff argued that the financial records showed potential bias on the part of the expert. The district court held, although possibly persuasive to a jury, the information fell short of the compelling circumstances standard.

A company brought suit against several defendants for tortious interference. The company sought discovery of tax returns and other financial documents from one defendant, and the trial court granted a motion to compel such discovery. The district court reversed that motion, holding that there was no evidence on the record that the defendant in question stood to benefit financially from the alleged cause of action.

The district court affirmed the trial court’s order that the defendant hospital produce records of adverse incidents involving two of its doctors beyond what the plaintiff requested. The hospital argued that it was only required to produce those documents required by section 381.028(7)(b), but the district court held that Article X, section 25 of the Florida Constitution trumped that statute and cast a much wider net of what is producible. The district court also rejected the hospital’s argument that Article X, section 25 was preempted by the federal Health Care Quality Improvement Act of 1986, finding that they did not conflict. The hospital’s argument that Article X, section 25's application in this case violated the Commerce Clause of the U.S. Constitution was also rejected. The district court held that the trial court departed from the essential requirements of the law in forcing the hospital to produce records regarding doctor training when there was no documented adverse incident to which that training related. Finally, the district court held that the trial court committed harmless error in allowing the plaintiff to discover blank applications from the hospital.

The trial court overruled the hospital’s objection to allowing the plaintiff to discover records of previous adverse medical incidents, and appealed. The hospital argued that the discovered documents included some that were protected by attorney client privilege, and that Article X, section 25 of the Florida Constitution violated Supremacy Clause of the U.S. Constitution. The district court affirmed holding that the attorney-client privilege argument was not ripe because the trial court did not decide the question of whether those documents deserved such protection.
The district court also held that the section of the Florida Constitution in question was not preempted by federal legislation in that it did not conflict with a federal law’s intent to ensure
“effective peer review” in hospitals.

A defendant passed out while driving and struck the decedent’s vehicle. The decedent’s personal representative brought suit against the defendant for wrongful death. The personal representative filed a request to test the defendant’s blood for chemicals included in cold medication, and the trial judge granted the request. The district court reversed holding that the request did not satisfy Florida Rule of Civil Procedure 1.360 (“Examination of the Person”). In order to satisfy that rule, a party would have to show good cause for the request and show that there is a controversy regarding the subject of the request. The representative in this case failed to present evidence showing how the presence of cold medication would affect the defendant’s negligence.

The trial court ruled a dentist in a malpractice case waived attorney-client privilege regarding
letters and other correspondence he had received from counsel when he sent them to his trial
expert. The district court revered this decision, holding that the simple act of sending this
correspondence to an expert was not sufficient to waive attorney-client privilege. The district court also relied on the fact that the expert testified that he had not read the correspondence
in question and that it in no way helped form the basis of his opinion.

The district court upheld the trial judge’s ruling that documents detailing complaints of infections and other investigations at the hospital that were created in anticipation of litigation were discoverable. The district court found these documents to be “fact” work product as opposed to “opinion” work product, which placed them within the realm of documents made discoverable by Article X, section 25 of the Florida Constitution. The decision placed an emphasis on the fact that the hospital’s attorney had never reviewed these documents and did not contain any of the attorney’s mental impressions.

The district court held that a client has waived attorney-client privilege when he or she is deposed by a former attorney as part of a suit between them. The former attorney was suing the client in this matter, and the district court held that attorney-client privilege does not exist when the two parties are on opposing sides of an action and the client has retained other counsel. Also, when one of those parties has asserted a breach of duty against the other, there is no attorney-client privilege as to the communications relevant to that breach.

The district court quashed the trial court’s order, which denied the plaintiff’s motion to prohibit pre-deposition conferences between nonparty doctors and the attorney representing the hospital. The district court held such a conference to be a violation of the patient confidentiality statute, section 456.057(6). That statute prohibits any nonparty physician from disclosing a patient’s medical condition and history to the counsel hired by the defendant’s insurer to represent the patient’s physician at a deposition.

The district court affirmed the trial court’s order requiring that the hospital produce records of adverse medical incidents prepared in anticipation of litigation. Despite the common law work product doctrine, the right of access to such documents granted under Article X, section 25 of the Florida Constitution grants patients the right to discover such documents and preempts the work product doctrine.

The district court affirmed the trial court’s denial of a directed verdict for the plaintiff on the issue of whether he sustained an injury in the car crash in question. The plaintiff argued that he was entitled to such a directed verdict because every doctor who testified at trial concluded that he had suffered an injury in the crash. The district court held that the jury is entitled to reject even uncontroverted medical evidence, provided it has a reasonable basis to do so. Lay testimony that conflicts with a doctor’s opinion, which was heard in this case, can provide such a basis.

A bank sought a writ of certiorari to quash an order which compelled responses to a request for production filed by the defendants in the bank's action alleging conversion of stock transferred to defendants’ account at another financial institution. Based on instructions from a non-party deposit holder, the bank transferred five million shares of stock out of the holder's account to respondents' account at another institution. Due to a clerical error, the bank transferred five million additional shares the following day. The defendants refused to return the additional five million shares. The requests for production at issue were for all statements for the holder's account, all documents as to lawsuits alleging erroneous transfer of shares, and all bank documents involving the sale or transfer of the same company's stock. The appellate court granted the writ and quashed the order. Because the holder's statements were confidential under § 655.059(2)(b), Fla. Stat. (2007) and the holder denied authorization to release the information, the trial court departed from the essential requirements of law by ordering production of those documents without requiring the defendants to make a showing of necessity. The requests for the other documents were overly broad and irrelevant to the issues in the instant case as there was no dispute as to the specific account or the transfer of stock involved.

Petitioners, who were defendants in an automobile negligence action, sought a petition for writ of certiorari to quash a discovery order that compelled a neurologist who performed a medical examination of one respondent, pursuant to Fla. R. Civ. P. 1.360, to produce all "reports of examiner" that he had prepared pursuant to that rule in any other lawsuit between 2004 and 2006. Petitioners argued that the documents requested were not discoverable, relevant, or admissible; that the request was unduly burdensome; and that the discovery invaded the privacy of the nonparty patients. Respondents argued that the request was appropriate based on the Florida Supreme Court's Amente decision. The appellate court granted the petition solely on the ground that it departed from the essential requirements of the law in requiring the disclosure of confidential medical information of nonparties without notice to those parties as required by § 456.057(7), Fla. Stat. (2006), and without adequate protections to protect the privacy rights of those nonparties under Art. I, § 23, Fla. Const. The holding in Amente did not eliminate the requirements of § 456.057, Fla. Stat. in standard personal injury lawsuits when the requested records were possessed by a physician who was not a party to the action. Thus, the trial court's order departed from the essential requirements of the law and caused irreparable injury to the privacy rights of nonparties who had been given no notice and no opportunity to be heard.