Grady Gray v. Gwen E. Richbell and Alan Richbell, etc. , 2014 Fla. App. LEXIS 10525 ( 2014 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2014
GRADY GRAY,
Petitioner,
v.
GWEN E. RICHBELL and ALAN RICHBELL as personal representatives
of the ESTATE OF DEVON LEIGH RICHBELL, deceased on behalf of
themselves as surviving parents,
Respondents.
No. 4D14-1920
[July 9, 2014]
Petition for writ of certiorari to the Circuit Court for the Nineteenth
Judicial Circuit, Martin County; George Shahood, Judge; L.T. Case No.
2011989CA.
Paul Shafranski and Rachel Gray Cerni of Cooney, Trybus, Kwavnick,
Peets, Fort Lauderdale, for petitioner.
Gregg Schlesinger and Zane Berg of Schlesinger Law Offices, P.A., Fort
Lauderdale, and Bard D. Rockenbach of Burlington & Rockenbach, P.A.,
West Palm Beach, for respondents.
MAY, J.
The defendant in an automobile negligence action filed a petition for a
writ of certiorari to prevent a compulsory neurological medical
examination. We granted the petition on June 2, 2014, and now follow
with this opinion.
The plaintiffs’ daughter was tragically killed in an automobile accident
on a two-lane road. As she passed a tractor-trailer, she was rear-ended by
the car behind her, who passed the tractor-trailer at the same time. The
collision caused her car to veer into the oncoming lane of traffic, where she
collided head-on with another truck being driven by the petitioner.
The plaintiffs alleged that the petitioner negligently failed to avoid the
accident. The plaintiffs theorize that the petitioner’s age and physical
condition contributed to the accident. The plaintiffs’ accident-
reconstruction expert rendered his opinion on the petitioner’s fault
without having reviewed the petitioner’s medical records. Nevertheless,
the plaintiffs sought and obtained the petitioner’s medical records and
deposed his treating physicians over the petitioner’s objection and request
for a protective order.
Because of that discovery, the plaintiffs requested the petitioner be
subjected to a compulsory neurological examination [CME]. The petitioner
objected and argued that his medical condition had not been placed into
controversy and the plaintiffs had failed to show good cause for the
examination as required by Rule 1.360 of the Florida Rules of Civil
Procedure.
Just prior to trial, with no action having been taken on the petitioner’s
objection to the CME, the plaintiffs’ expert opined that the petitioner was
suffering from dementia at the time of the accident even though none of
the petitioner’s treating physicians had ever diagnosed him with this
condition. At a hearing less than a week before trial, the trial court
overruled the petitioner’s objection to the CME and ordered him to undergo
the examination three days prior to the start of trial. From this order, the
petitioner sought relief from this court. The plaintiffs filed a response the
same day.
“[C]ertiorari is appropriate when a discovery order departs from the
essential requirements of law, causing material injury to a petitioner
throughout the remainder of the proceedings below and effectively leaving
no adequate remedy on appeal.” Allstate Ins. Co. v. Langston, 655 So. 2d
91, 94 (Fla. 1995). This is such an instance.
Rule 1.360 provides: “A party may request any other party to submit
to . . . examination by a qualified expert when the condition that is the
subject of the requested examination is in controversy.” Fla. R. Civ. P.
1.360(a)(1). Examinations under this rule require “good cause for the
examination.” Fla. R. Civ. P. 1.360(a)(2). And when the party subject to
the examination has not voluntarily placed his condition into controversy,
great care should be taken to insure that good cause exists, for such
examinations invade the privacy rights of the person to be examined.
Wade v. Wade, 124 So. 3d 369, 376 (Fla. 3d DCA 2013); see also
Russenberger v. Russenberger, 639 So. 2d 963, 965 n.4 (Fla. 1994) (noting
the United States Supreme Court’s holding in Schlagenhauf v. Holder, 379
U.S. 104 (1964), that “good cause” and “in controversy” requirements are
not met by mere conclusory allegations).
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The two essential prerequisites that must be clearly
manifested are: (1) that petitioner’s mental condition is “in
controversy” i.e. directly involved in some material element of
the cause of action or a defense; and (2) that “good cause” be
shown i.e. that the mental state of petitioner, even though “in
controversy,” cannot adequately be evidenced without the
assistance of expert medical testimony.
Gasparino v. Murphy, 352 So. 2d 933, 935 (Fla. 2d DCA 1977).
The Second District addressed a similar issue in Wicky v. Oxonian, 24
So. 3d 571 (Fla. 2d DCA 2009). There, the defendant driver collided with
another vehicle after she passed out, killing the plaintiff’s decedent. The
plaintiff sought to test a sample of the defendant’s blood for Benzonatate.
The trial court granted the request. The defendant petitioned for a writ of
certiorari.
The district court quashed the ordered exam. Because the plaintiff had
relied upon Rule 1.280 instead of Rule 1.360, it failed to present evidence
to satisfy the two requirements for a compulsory examination. The court
relied on its prior opinion in Gasparino, where the court focused on the
defendant’s conduct and not the defendant’s mental state: “[I]t is his
conduct which is at issue; specifically whether such conduct was
negligent, unreasonable or involved the use of excessive force.” Id. at 574(quoting Gasparino, 352 So. 2d at 935).
Similarly, it is not the petitioner’s mental or physical health that is at
issue here, but his conduct—whether he was negligent in failing to avoid
a car that veered into his lane of traffic. If he was not negligent, then his
physical health is immaterial; and if he was negligent, the same holds true.
Plaintiffs have not satisfied the two requirements for compelling a
neurological examination of the defendant. And the plaintiffs’ accident-
reconstruction expert was able to render his opinion without even having
the defendant’s medical records. This proves the point. We therefore grant
the petition.
Petition Granted.
DAMOORGIAN, C.J., and WARNER, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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