Disciplined in Sophisticated Defense and Insurance Litigation

April 14, 2017 | Blog Post| Supreme Court says lawyer's referral of client to a doctor for treatment is attorney-client privileged communication, and out of bounds in discovery

The Florida Supreme Court declared that the attorney-client privilege shielded a motor vehicle accident plaintiff from being required to disclose that her attorney had referred her to a doctor for treatment.  In Worley v. Central Fla. Young Men’s Christian Ass’n, Inc., SC15-1086 (Fla. April 13, 2017), the supreme court disapproved a decision of the Fifth District Court of Appeal and pulled back from the expansive readings of its landmark decisions in Allstate Ins. Co. v. Boecher, 733 So. 2d 993 (Fla. 1999), and Elkins v. Syken, 672 So. 2d 517 (Fla. 1996.)  Justice Quince, writing the majority 4-3 decision, said those earlier supreme court cases were different, because they involved a party’s financial relationship with experts, and treating doctors are not the same as the experts in those cases. Treating physicians acquire their expert knowledge not for the purpose of litigation, “but rather simply in the course of attempting to make their patients well.” 

The plaintiff objected to the defendant’s requests to disclose whether the plaintiff saw her treating physician at her attorneys request.  The Fifth District ruled she had to disclose it, but the supreme court majority disagreed.  The answer to that question was a protected attorney-client communication – no disclosure required.

The supreme court did recognize that Florida law still allows a party to attack a witness’ credibility based on “bias,” meaning here that the treating physician has a stake in the outcome of the litigation and might give biased opinions.  Letters of protection (where doctor defers payment for treatment until conclusion of the case), and medical bills that are higher than normal, can be presented to dispute the physician’s testimony regarding the reasonableness of the claim to damages.  

Anthony J. Russo

Anthony is a partner in our Tampa office; he is a Florida Board Certified Lawyer practicing in all of Florida’s appellate courts.

August 04, 2017 Blog PostStill Keeping Us Guessing: Florida Supreme Court Poised to Clarify The Daubert Standard in Florida. Maybe.

Earlier this year, the Florida supreme court raised a red flag on the new Florida Statute section 90.702 in In re: Amendments to the Florida Evidence Code, SC16-181, 2017 WL 633770 (Fla. Feb. 16, 2017).  In that opinion the supreme court only noted it had “grave concerns” that (unidentified) elements of the new section 90.702 Daubert statute are constitutionally suspect – it gave no substantive ruling on the matter.

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July 26, 2017 Blog PostThe Continuing Saga of Sebo v. American Home Assurance Company: The Second District Court of Appeal Rules on Remand

On July 20, 2017, the Second District Court of Appeal issued an order that closed its books on the Sebo appeal.  Mr. Sebo made a homeowner’s claim to American Home contending construction deficiencies had allowed water to enter the residence at multiple points, causing, eventually, a complete destruction of the residence.  The trial court ruled the concurrent cause doctrine applied, and so that the combination of covered water damage and excluded faulty, inadequate and defective construction had resulted in coverage for the loss. 

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June 26, 2017 Blog PostEXTRAORDINARY WRITS: CERTIORARI, PROHIBITION AND MANDAMUS

Extraordinary Writs:  Certiorari, Prohibition and Mandamus.  The ins and outs of appellate relief via an extraordinary writ covered by Carol in depth in this webinar.  

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May 02, 2017 Blog PostPreserving Error For Appeal in Florida State Courts 2017 Podcast

Carol’s first webinar for the 2017 Appellate Webinar Series covered preserving error for appeal in Florida state courts.  Don’t win the battle and lose the war because of unpreserved error! 

If you missed the webinar, you can catch up on all of the essential information you need to know regarding critical preservation issues downloadable on all devices.

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April 03, 2017 Blog PostFlorida Supreme Court To Consider Rule Change Allowing Immediate Review Of Orders On Settlement Agreements

The Florida Bar Appellate Rules Committee has proposed to the Florida Supreme Court an amendment to the appellate rules that would allow immediate appeals of orders that determine if, “as a matter of law, a settlement agreement is unenforceable, was set aside, or never existed.” 

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February 21, 2017 Blog PostSupreme Court speaks on Daubert – says not much

Last week the supreme court issued its opinion on the recommendations of the Florida Bar Rules committee regarding the new Daubert statute. The supreme court noted there are “grave concerns” that (unidentified) elements of the Daubert statute are constitutionally suspect.  But, in the end, Florida’s Daubert statute is still the law of Florida – the Florida statute was not struck down or deemed to be unconstitutional.  Practitioners still must comply with it.

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January 18, 2017 Blog PostSAFEGUARDING EVERY VETERAN'S BENEFITS: LESSONS FROM BRUCE V. MCDONALD, 2017 WL 57172

On January 5, 2017, the United States Court of Appeals for Veterans Claims rejected the assertion by the Veteran’s Administration (VA) and the Board of Veterans Appeals (the Board) that a service member who requested a discharge in Lieu of Court Martial after an unauthorized absence of 42 days was barred from seeking veteran’s benefits for an injury he had suffered on active duty.

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September 28, 2015 Blog PostUnprotected: Florida Appellate Court Holds Protective Safeguard Condition Is Not A Condition Precedent To Coverage

A Florida appellate court recently held that the breach of a protective safeguard condition did not automatically suspend coverage.

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June 02, 2015 Blog PostThe Florida Supreme Court Endorses Citizens' Immunity

The high court declared that Citizens is shielded from statutory bad-faith suits, and that bad faith is not a “willful tort,” which is a statutory exception to the immunity granted by the Florida Legislature.  The vindication was a long time coming for Citizens.  The Legislature created Citizens with a broad immunity that seemed clearly intended to shield it from bad-faith actions...

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