HomeMy WebLinkAbout2020CV30363 - Stuward Cross And Katrina Richman V. City Of Fort Collins - 041B - Exhibit B - Order Of Judge Ross Buchanan In Denver District Court1
DISTRICT COURT, CITY AND COUNTY OF DENVER,
STATE OF COLORADO
Court Address:
1437 Bannock St., Denver, CO 80202
Plaintiff(s),
Cheryl Serna
And
Defendant(s),
Jacob Calhoun
Case Number: 16CV34359
Ctrm: 275
ORDER RE: DISCOVERY ISSUE
THIS MATTER came before the court for a telephonic hearing on a discovery matter.
Plaintiff was represented by Dustin Bergman, and Defendant was represented by Ryan Nichols,
both of whom appeared by telephone. The court, having reviewed the Notice of Filing of
Exhibits A and B for Telephone Status Conference on Discovery Issue, filed by defense counsel,
Exhibits A and B thereto, having considered the arguments of counsel at the hearing, and having
subsequently reviewed the case law cited by counsel during the hearing, HEREBY ORDERS as
follows, in place of the oral ruling made at the conclusion of the hearing:
The issue presented is whether a plaintiff’s counsel’s referral of his client to a particular
physician is discoverable, or whether it is protected by the attorney-client privilege.
The attorney-client privilege recognized in Colorado is statutory in origin:
An attorney shall not be examined without the consent of his client
as to any communication made by the client to him or his advice
given thereon in the course of professional employment; nor shall
an attorney's secretary, paralegal, legal assistant, stenographer, or
clerk be examined without the consent of his employer concerning
any fact, the knowledge of which he has acquired in such capacity.
C.R.S. § 13-90-107(1)(b). However, the privilege has been recognized to be somewhat broader
than the language of the statute. For instance, “[t]he attorney-client privilege not only precludes
examination of a lawyer, but also prevents third-party access to any confidential matters
communicated by or to the client in the course of gaining counsel, advice, or direction with
respect to the client's rights or obligations.” Metro Wastewater Reclamation Dist. v. Cont’l Cas.
Co., 142 F.R.D. 471, 476 (D. Colo. 1992)(emphasis supplied). In order for an attorney-client
privilege to exist, there must be: (1) the existence of a professional relationship, including the
COURT USE ONLY
DATE FILED: July 14, 2017 5:37 PM
CASE NUMBER: 2016CV34359
DATE FILED: October 11, 2021 9:41 PM
FILING ID: DA8F83C2EB94C
CASE NUMBER: 2020CV30363
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covered parties; (2) a communication made in the context of the relationship relating to the
purpose of the relationship, (3) the intent of confidentiality, and (4) the absence of an exception
to the privilege.” 23 Colo. Prac., Evidence Law, § 501:3. There does not appear to be any
dispute as to the existence of an attorney-client relationship, nor does Defendant argue that there
is a relevant exception with respect to the specific issue which is the subject of this Order.
With respect to the question asked of Plaintiff Serna at her deposition on June 26, 2017 at
page 95, lines 10-11, “Q. Did the Ramos law firm ever refer you to any doctors or other medical
providers?,” Exhibit A, the court finds that that question seeks access to confidential matters
communicated to the client in the course of gaining counsel, advice, or direction with respect to
the clients rights or obligations, within the meaning of the Metro Wastewater case quoted above,
and therefore is protected from discovery by the attorney-client privilege. It obviously seeks
discovery of one or more communications made in the context of an attorney-client relationship
and relates to the purpose of that relationship, i.e., prosecuting a claim for damages arising out of
a personal injury. The choice of physicians or other healthcare providers for purposes of treating
injuries sustained in events which give rise to personal injury lawsuits, including the specialties,
expertise, availability, frequency of appointments, diagnoses and prognoses reached, and
treatment results achieved, among many other issues, certainly go to the plaintiff’s rights or
obligations in the litigation. In addition, any such communications were apparently intended to
be confidential, since neither party indicates that such a referral is reflected in the medical
records or has been otherwise disclosed.
The court notes that neither party has cited any binding Colorado appellate authority on
this issue, nor has the court found any. Rather, the parties have relied on case law out of Florida,
which has examined this and several related issues in considerable depth. Defendant relies upon
an order filed July 16, 2016 by Judge Horton of the Arapahoe County District Court in Nunez-
Hurtado v. Rupe, 2015 CV 31629, which was Exhibit B to its filing. In that Order, Judge Horton
relied upon the case of Worley v. Central Florida Young Men’s Christian Assoc., Inc. 163 So.3d
1240 (Fla. App. 2015), in which Florida’s Fifth District Court of Appeals held that the
defendant’s inquiry of an injured plaintiff as to whether she had been referred to particular
treating physicians by her counsel or her counsel’s firm was “appropriate” and not an invasion of
the attorney-client privilege. Exhibit B at 3, quoting Worley, supra, 163 So.3d at 1247. In so
holding, however, the Worley court recognized that its ruling was in conflict with Burt v.
Government Employees Insurance Co., 603 So.2d 125 (Fla. App. 1992), a decision by Florida’s
Second District Court of Appeal. As Plaintiff’s counsel pointed out an argument, pursuant to the
Worley Court’s certification of that conflict, the matter was heard by the Florida Supreme Court.
That court recently issued a 4-3 decision, approving Burt and quashing Worley, and holding that
“the question of whether a plaintiff’s attorney referred him or her to a doctor for treatment is
protected by the attorney-client privilege.” Worley v. Central Florida Young Men’s Christian
Assoc., Inc, 2017 WL 1366126 (Fla. 2017)(opinion not released for publication in permanent law
reports, and subject to revision or withdrawal).
Accordingly, the court HEREBY VACATES the oral ruling recited at the conclusion
of the hearing, and ORDERS that Plaintiff Serna is not required to respond to the question
posed during her deposition at page 95, lines 10-11, as the information sought by the question is
protected by the attorney-client privilege.
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DATED this 14th day of July, 2017.
BY THE COURT:
______________________________________
Ross B.H. Buchanan
Denver District Court Judge