Court Muzzles Counsel: Says Defendants Cannot Ask Plaintiffs if Their Attorneys Referred Them to Treating PhysiciansApril 27, 2017 | Jeffery Kruse
Defense lawyers routinely ask personal injury plaintiffs how they came to be treated by their doctors. But defense lawyers in Florida will no longer be allowed to ask plaintiffs if their lawyers referred them to physicians for treatment even if those attorneys repeatedly refer their clients to the same doctors. In Worley v. Cent. Fla. YMCA, 2017 Fla. LEXIS 812 April 13, 2017), the Florida Supreme Court held that the attorney-client privilege protects a party from being required to disclose if her attorney referred her to a doctor for treatment. In a 4-3 ruling, the Court held that asking whether a lawyer referred a client to a doctor “implicates a confidential communication between the attorney and the client.”
In Worley, the plaintiff fell in the YMCA parking lot and injured her right knee. Because she claimed she did not have insurance, she did not see a specialist but instead retained attorneys and then sought treatment from specific orthopedic and anesthesia practices. During discovery, the YMCA “repeatedly attempted to discover the relationship” between Worley’s law firm and her treating physicians, because the YMCA suspected there was a ”cozy agreement” between the firm and the physicians.
As part of the attempts to discover whether the attorneys referred the plaintiff to the treating physicians, the YMCA asked the plaintiff in her first deposition if her attorneys had referred her to the doctors. The plaintiff’s attorneys objected claiming that the information was protected by the attorney-client privilege. In a second deposition, the YMCA asked “how [plaintiff] was referred to her doctor.” Again, plaintiff’s counsel objected to the question.
The Worley majority acknowledged “[t]hat the plaintiff was treated by a particular doctor is an underlying fact.” The majority also agreed “[t]hat the plaintiff received a referral to see a particular doctor is also an underlying fact.” Nonetheless, the court held that “whether the plaintiff’s attorney requested that the client see a certain doctor requires the plaintiff to disclose a part of a communication that was held between the plaintiff and the attorney.”
But the majority ignored the requirement that to be privileged, a communication between a lawyer and a client must be “in furtherance of the rendition of legal services to the client.” § 90.502(1)(c) Fla. Stat. As discussed by the three dissenting justices, “[a] lawyer’s referral of a client to a treating medical provider is for the purpose of the client’s medical care, not in furtherance of legal services.” Thus, “communications that do not involve legal advice” should not be protected by the attorney-client privilege. The dissent thus concluded that “if a communication is a recommendation of a physician from whom someone should seek medical treatment the referral does not constitute protected legal advice.”
To make matters worse, the majority seems to have restricted broader inquiries into relationships between plaintiffs’ firms and treating doctors. Before addressing whether the attorney-client privilege barred the specific question of whether the plaintiff’s attorneys referred her to her doctors, the majority considered “whether the financial relationship between a plaintiff’s law firm and the plaintiff’s treating physician [was] discoverable.” The majority stated that the relationship was not discoverable because the law firm was “not a party to the litigation” and treating physicians are not hired for the purpose of the litigation.
The majority did indicate that defendants could inquire whether the doctor provided medical care to the specific plaintiff pursuant to a “Letter of Protection,” to establish bias on the part of the treating doctors. (Letters of Protection are generally used only when patients lack insurance or adequate insurance to guarantee payment.) But this narrow limitation ignores whether the law firm and the treating physicians have ongoing financial relationships. And the majority decision would seemingly prevent defendants from discovering any referral relationship if the plaintiff has sufficient medical insurance.
As explained by the dissent, “[i]f a law firm routinely refers clients to the medical provider…the more it is likely that the witness has a vested interest in that financially beneficial relationship continuing.”
While the overly broad wording of the majority opinion prevents defense counsel from asking plaintiffs if they were referred to doctors by their lawyers, the decision should leave open other avenues to discover information about attorney referrals to and “cozy agreements” with treating doctors. Some of those opportunities should include:
- Intake Forms: Most new patient forms ask who referred the patient to the doctor’s office. If the plaintiff admits his attorney referred him, no privilege should apply.
- Relatives and Third Parties: Defense counsel should be able to ask if the plaintiffs’ friends or relatives know who referred plaintiffs to their doctors. In general, plaintiffs waive any attorney-client privilege if they disclose their communications with their lawyers to other people.
- Treating Physician Depositions: Nothing in the opinion should prevent defense counsel from asking a doctor if the doctor knows who referred the plaintiff for treatment. If the doctor knows it was the plaintiff’s attorney, then the privilege has been waived through disclosure.
- Prior Testimony of the Treating Doctors: If the doctors have testified in other cases in which the same attorneys represented the plaintiffs, defense counsel should still be able to inquire about those prior cases.
Thankfully, the Florida Supreme Court’s decision in Worley is an outlier. As noted by the dissent, a lawyer’s referral of a plaintiff to a doctor is not legal advice. The identity of the person who referred a patient to a doctor is an underlying fact. The narrow majority in Worley simply reached the wrong conclusion. Defense lawyers across the country should remain vigilant to prevent the mistaken ruling in Worley from spreading to other states.
Related Services: Aerospace, Automotive, Food & Beverage, Healthcare, Insurance, Pharmaceutical & Medical Device, Retail, Trucking, Complex, Class Action & MDL, E-Discovery & Document Management, Medical Malpractice, Personal Injury Defense, Premises Liability, Product Liability and Toxic/Mass Tort & Environmental
Attorneys: Jeffery Kruse
A little less than two weeks apart, two federal judges emphatically let practitioners in their districts know how much they despise boilerplate objections to written discovery. Both judges delivered the same message: boilerplate objections violate the Federal Rules of Civil Procedure, are not valid objections and could subject parties or their attorneys to sanctions.
In the first order, Magistrate Judge Andrew Peck of the Southern District of New York expressed his disgust for boilerplate objections in just a few pages and most of those pages involved direct quotations from the Federal Rules, the Advisory Committee Notes to the rules and the specific requests for production and the responses to those requests. Stripped of the quotations, Judge Peck used fewer than a dozen paragraphs in Fischer v. Forrest, 2017 U.S. Dist. LEXIS 28012 (S.D.N.Y. Feb. 28, 2017), to explain that boilerplate objections violate the Federal Rules in at least four ways.
In contrast, Judge Mark Bennett of the Northern District of Iowa penned an expressive 45 page treatise in Liguria Foods, Inc. v. Griffith Labs, Inc., 2017 U.S. Dist. LEXIS 35370 (N.D. Iowa Mar. 13, 2017), in which he lambasted the use of boilerplate objections and analyzed whether the use of those objections by both parties constituted sanctionable conduct. Ultimately, Judge Bennett decided against issuing sanctions in this particular case, but he made it clear that he will issue sanctions in future cases.
Judge Peck’s Order in Fischer v. Forrest
In the opening sentence of his short order, Judge Peck declared that “[i]t is time, once again, to issue a discovery wake-up call to the Bar in this District…” Specifically, Judge Peck reminded practitioners that amendments to the Federal Rules of Civil Procedure took effect on December 1, 2015 and those amendments included changes to Rule 34 regarding responses to discovery requests. In particular, Judge Peck noted that:
(a) grounds for objections must be stated with specificity;
(b) objections must state whether responsive material is being withheld on the bases of objections; and
(c) parties must specify the time for production of documents, and if it will be a rolling, then the production will begin and end.
Lawyers who have not changed their “form file” for objections to discovery requests “violate one or more (and often all three) of these changes.” Judge Peck then lamented that “[d]espite the clarity of the no-longer-new 2015 Amendments, the Court still sees too many non-compliant Rule 34 responses.”
After noting that the defendant included 17 “general objections” in its responses to the discovery requests, Judge Peck quoted from the defendant’s objections to the first two document requests. The defendant objected “to the extent that [they are] overly broad and unduly burdensome, and not likely to lead to the discovery of relevant evidence” and that the requests seek “information already in Plaintiff’s possession.”
According to Judge Peck, those objections violate the amended rules in at least four respects. First, the general objections violate Rule 34(b)(2)(B)’s requirement that objections be stated with specificity and Rule 34(b)(2)(C)’s requirement to indicate if responsive material is being withheld on the basis of a specific objection. Thus, “[g]eneral objections should rarely be used after December 1, 2015 unless each such objection applies to each document request.”
Second, the defendant’s general objections on the basis of “non-relevance” to the “subject matter of the litigation” and that the discovery is “not likely to lead to the discovery of relevant admissible evidence” are outdated. Because "discovery about 'subject matter' no longer is permitted" and because the “2015 amendments deleted” the “likely to lead to the discovery of relevant, admissible evidence” language, “lawyers need to remove [that language] from their jargon."
Third, objections that requests are “overly broad and unduly burdensome” are “meaningless boilerplate” because that “language tells the Court nothing.” Fourth, the discovery responses failed to indicate when the responsive material would be produced.
Judge Peck concluded his order with an ominous warning to practitioners:
From now on in cases before this Court, any discovery response that does not comply with Rule 34’s requirement to state objections with specificity (and to clearly indicate whether responsive material is being withheld on the basis of objection) will be deemed a waiver of all objections (except as to privilege).
Judge Bennett’s Order in Liguria Foods, Inc. v. Griffith Labs, Inc.
Judge Bennett, in Liguria Foods, concluded his order in similar fashion. But unlike Judge Peck, Judge Bennett used the typewritten version of yelling to issue his warning – he concluded his order in all capital letters. Specifically, he announced:
NO MORE WARNINGS. IN THE FUTURE, USING “BOILERPLATE” OBJECTIONS TO DISCOVERY IN ANY CASE BEFORE ME PLACES COUNSEL AND THEIR CLIENTS AT RISK FOR SUBSTANTIAL SANCTIONS.
In his 45-page order, Judge Bennett cites no fewer than ten scholarly articles to support his opposition to boilerplate objections, and observes that no judicial jurisdiction in the United States “authorizes, condones, or approves of this practice[.]” According to Judge Bennett, boilerplate objections are “obstructionist” and this obstructionist discovery practice is a firmly entrenched “culture” in some parts of the country, notwithstanding that it involves practices that are contrary to the rulings of every federal and state court to address them.
Because boilerplate objections are part of the “culture,” Judge Bennett declared that “admonitions from the courts have not been enough to prevent such conduct and that, perhaps, only sanctions will stop this nonsense.” Thus, in his view, Judge Bennett wrote that “the imposition of increasingly severe sanctions will help solve the problems.”
Although counsel for both parties agreed that they had a cooperative and professional relationship throughout discovery, Judge Bennett nonetheless spent several pages of his order considering whether to sanction counsel for both parties who prepared the “obstructionist” boilerplate objections. Ultimately, Judge Bennett decided against issuing sanctions in this case. But he “strongly encourage[d] counsel for both parties to improve discovery practices at their own firms and to educate their colleagues and law students on proper discovery responses.”
Prior to this order, Judge Bennett had issued a Supplemental Trial Management Order applicable in cases starting in 2017. In that new order, Judge Bennett specifically states that “[a]ny party subjected to obstructionist conduct in discovery or depositions…shall promptly file a Report to the Court in writing, advising the Court of the specific nature of the alleged discovery abuse, regardless of whether or not the party intends to seek sanctions on its own motion.” In short, parties now have an affirmative obligation to report “obstructionist discovery conduct” to Judge Bennett.
Key Takeaways from Both Orders
The message from both judges could not have been louder or clearer: boilerplate objections are unacceptable and may be sanctioned in future cases. But the disdain for boilerplate objections is not limited to just these two judges. Judges in Kansas have long railed against boilerplate objections, general objections, and conditional objections. See High Point SARL v. Sprint Nextel Corp., 2011 U.S. Dist. LEXIS 103118 (D. Kan. Sept. 12, 2011) (rejecting “unduly burdensome” objections that were not supported by evidence detailing the nature of the burden); Pro Fit Mgmt. v. Lady of Am. Franchise Corp., 2011 U.S. Dist. LEXIS 19152 (D. Kan. Feb. 25, 2011) (criticizing general and conditional objections as “hypothetical and meaningless”); Duffy v. Lawrence Mem. Hosp., 2016 U.S. Dist. LEXIS 176848 (D. Kan. Dec. 21, 2016) (citing numerous Kansas rulings railing against conditional and boilerplate objections including cases dating back as far as 2005).
And in the few weeks since Judge Peck penned his order, other federal judges from California, Florida and North Carolina have joined the chorus, albeit with less fervor than Judges Peck and Bennett. In Sream, Inc. v. Hassan Hakim & Sarwar, 2017 U.S. Dist. LEXIS 31491 (S.D. Fla. Mar. 6, 2017), the court quoted directly from Judge Peck’s order that the language “overly broad” and “unduly burdensome” “tells the Court nothing.” In another case, Am. Humanist Assn. v. Perry, 2017 U.S. Dist. LEXIS 38600 (E.D.N.C. Mar. 17, 2017), after noting that “[s]uch boilerplate objections are subject to waiver,” the court threatened sanctions up to default judgment if the defendant’s supplemented discovery responses continue to be deficient. See also Amatrone v. Champion, 2017 U.S. Dist. LEXIS 40800 (N.D. Cal. March 20, 2017) (holding that “boilerplate responses are insufficient.”).
Judge Peck urged counsel to update their “form” files and suggested that parties should avoid “general objections” except in rare instances. Judge Bennett explicitly prohibits boilerplate objections in his Supplemental Trial Management Order. He also provides direct instructions regarding proper discovery responses. The amended Federal Rules require specific objections and detailed privilege logs. To avoid the wrath of federal judges, parties would be wise to avoid the types of boilerplate objections made by the parties in Fischer and Liguria Foods, Inc.
Related Services: Aerospace, Automotive, Construction, Food & Beverage, Banking, Healthcare, Hospitality & Leisure, Insurance, Pharmaceutical & Medical Device, Retail, Trucking, Appellate, Commercial, Complex, Class Action & MDL, Construction, Fidelity & Surety, Cyber Liability, Privacy & Data Breach, E-Discovery & Document Management, Employment & Labor, Financial Services Litigation, Medical Malpractice, Personal Injury Defense, Premises Liability, Product Liability, Professional & Management Liability and Toxic/Mass Tort & Environmental
Attorneys: Jeffery Kruse
In a recent Eighth Circuit case, Lanny O’Neal was killed in 2008 when a 1971 Remington Model 700 .243 caliber-bolt action rifle unexpectedly discharged. His wife, Carol O’Neal, after two attorneys had declined to represent her, had the rifle destroyed because it reminded her of his death.
Several months later, Carol saw a news documentary on a trigger defect in Model 700 rifles which prompted her to file suit in 2011. A South Dakota district court granted summary judgment to Remington on the grounds that O'Neal could not show whether the alleged defect existed at the time of manufacture or whether the defect resulted from a subsequent alteration or modification to the rifle. On appeal, the Eighth Circuit reversed, holding that O’Neal presented sufficient circumstantial evidence to show the alleged defect was not the result of a subsequent alteration or modification.
Remington used a trigger mechanism in its Model 700 rifles called the Walker trigger. Remington knew the Walker trigger could cause Model 700 rifles to fire a round when the safety lever is released from the safe position to the fire position, without the trigger being pulled. This defect resulted from the manner in which two components of the trigger mechanism – the sear and the connector – interacted with one another, coupled with the lack of a physical attachment between the connector and the trigger itself. Remington knew of the Walker trigger problem as early as 1979, but decided against recalling the Model 700 rifles.
In addition to presenting evidence that the subject rifle was equipped with a Walker trigger mechanism at the time of manufacture, O’Neal presented substantial evidence that the trigger mechanism was not modified or altered from the mid-1980s (the date Lanny’s stepfather bought the gun) to the date of the hunting accident. However, there was a gap of over a decade of unaccounted time from 1971 to the date of purchase, which was at the heart of the dispute.
Remington argued that the destruction of the rifle precluded O'Neal from establishing that the trigger mechanism was the original Remington trigger mechanism, rather than an after-market trigger made by another manufacturer.
The Eighth Circuit (in a 2-1 decision) disagreed noting that there was no evidence the subject rifle had a history of inadvertent discharges that might spur an owner to replace the trigger mechanism. The Court majority reasoned that the fact that “the subject rifle was used many times without incident from the mid-1980s through November 2008, and then suddenly inadvertently discharged, is more consistent with the unpredictable manifestation of the inherent design defect in the Walker trigger, than it is with the rifle being equipped with a replacement trigger designed to eliminate the possibility of an inadvertent discharge.”
Further, the hunting accident was investigated by the state, local and federal authorities which included an inspection of the rifle and a description of additions to the rifle made by other manufacturers. An aftermarket trigger mechanism was not included. The court stated that the absence of such information supports the reasonable inference that the trigger mechanism in the subject rifle was the original Remington Walker trigger.
Accordingly, the Eighth Circuit reversed the trial court’s summary judgment ruling in favor of Remington, and remanded the case for trial, concluding that O'Neal presented sufficient circumstantial evidence to show the alleged defect was present at the time of manufacture and was not the result of a subsequent alteration or modification.
The Eight Circuit’s opinion should serve as a reminder that lack of the product does not signal an automatic win for the defense. If Plaintiff can provide circumstantial evidence to show the alleged defect was present at the time of manufacture and was not the result of a subsequent alteration or modification, plaintiff will be able to avoid summary judgment.
About Product Liability Law Blog
The BSCR Product Liability Blog examines significant developments, trends, and topics in product liability law of interest to individuals and product manufacturers, distributors and sellers. Learn more about the editor, David E. Eisenberg, and our Product Liability practice.
The Product Liability Law Blog is made available by Baker Sterchi Cowden & Rice LLC for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. Your use of this blog site alone creates no attorney client relationship between you and the firm.
Do not include confidential information in comments or other feedback or messages related to the Product Liability Law Blog, as these are neither confidential nor secure methods of communicating with attorneys. The Product Liability Law Blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.