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Florida Third DCA holds in slip-and-fall case that defense counsel was entitled to inquire at trial about treating physician’s percentage of practice and income derived from referrals from the law firm representing the plaintiff

On October 16, 2019, in Araujo v. Winn-Dixie Stores, Inc, Nos. 3D18-2475 and 3D18-204, the Florida Third DCA affirmed a final judgment of the trial court in a slip-and-fall case following a jury verdict in which the plaintiff was determined to be 50% responsible for her injuries. The plaintiff raised various issues on appeal, including alleging that the trial court erred in allowing defense counsel to elicit from a treating physician that he had a testified a number of times in the past under letters of protection for the law firm representing the plaintiff. The plaintiff argued on appeal that this line of questioning was precluded by Worley v. Central Florida Young Men’s Christian Assoc., Inc., 228 So. 3d 18 (Fla. 2017), which held the attorney-client privilege precludes defense counsel from asking a plaintiff whether his or her attorney referred the plaintiff to a particular doctor for treatment. The Third DCA distinguished Worley, noting that a referral was not at issue here. The Third DCA stated that the Worley Court “recognized that the defense is permitted to establish bias on the part of a treating physician by evidence of a Letter of Protection, whether all or a significant part of the provider’s practice is pursuant to Letters of Protection, or whether the amounts charged are higher than usual for those treatments.” The Third DCA concluded that questioning about the percentage of a treating doctor’s practice and income derived from referrals from a plaintiff’s law firm is permissible. On a related issue, the Third DCA concluded that defense counsel’s opening statement that if the plaintiff did not recover damages, her doctors would not get paid because they were treating her under letters of protection, was not so inflammatory and prejudicial that it warranted reversal. Finally, the Third DCA also affirmed the trial court’s denial of plaintiff’s post-trial motion attorney’s fees pursuant to Fla. R. Civ. P. 1.390(c) as a result of the defenses failure to admit certain facts in the case. The Third DCA concluded that facts were “hotly contested” issues not subject to Rule 1.390(c). See Arena Parking, Inc. v. Lon Worth Crow Ins. Agency, 768 So. 2d 1107, 1113 (Fla. 3d DCA 2000) (holding expenses incurred by a successful litigant as a result of the opposing party's failure to admit requests for admissions may not be assessed against the opposing party for denying a request to admit a hotly-contested, central issue to the case).