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Florida Third DCA rules that plaintiff opened the door to 'inference and argument' by defense counsel about her alleged referral by her attorney to a treating chiropractor

On July 15, 2020, in Ruchimora v. Grullon, No. 3D19-753, the Florida Third DCA ruled that a trial court did not abuse its discretion in permitting the defendant in a motor vehicle negligence trial to introduce “inference and argument” purporting to assert a referral relationship between the plaintiff’s former attorney and her chiropractor. During his opening statement at trial, defense counsel inferred that the plaintiff’s former attorney referred the plaintiff to her chiropractor, contradicting the plaintiff’s former deposition testimony that she was referred by an emergency room doctor. Additionally, during the defense stage of the case, defense counsel challenged the plaintiff’s previous testimony concerning the referral. The jury subsequently found that the defendant caused the plaintiff’s injury but that the plaintiff did not suffer a permanent injury, disqualifying her for an award of pain and suffering damages. The plaintiff argued on appeal that the references to her former attorney’s alleged referral of the chiropractor violated her attorney-client privilege, citing Worley v. Central Florida Young Men’s Christian Association, Inc., 228 So. 3d 18, 20 (Fla. 2017) (holding that “the attorney-client privilege protects a party from being required to disclose that his or her attorney referred the party to a physician for treatment”). However, the Third DCA concluded that the plaintiff opened the door to this line of argument as impeachment evidence by testifying that she was in fact referred by her ER doctor, stating that the plaintiff “placed her credibility at issue, and the jury was permitted to draw inferences from [the plaintiff’s] own evidence.” The Court cited Whiteaker ex rel. Parker v. Gilreath, 734 So. 2d 105, 1107 (Fla. 2d DCA 1999) (“An inference is a logical deduction of fact that the trier of fact draws from the existence of another fact or group of facts. Whether the inferred fact is found to exist will be decided by the trier of fact.”)