THE WEEK IN TORTS

FLORIDA LAW WEEKLY
VOLUME 39, NUMBER 29
CASES FROM THE WEEK OF JULY 18, 2014

CIRCUIT COURT DEPARTED FROM ESSENTIAL REQUIREMENTS OF LAW IN ORDERING COMPULSORY NEUROLOGICAL EXAM OF DEFENDANT, WHERE DEFENDANT’S MENTAL/PHYSICAL HEALTH WAS NOT AT ISSUE, BECAUSE THE ONLY QUESTION WAS WHETHER DEFENDANT WAS NEGLIGENT IN FAILING TO AVOID DECEDENT’S CAR

Gray v. Richbell, 39 Fla. L. Weekly D1424 (Fla. 4th DCA July 9, 2014):

A young woman was killed when she was rear-ended as she passed a tractor trailer, causing her to veer into the oncoming lane of traffic head on with another truck.

Plaintiffs theorized that the truck driver defendant’s age and physical condition contributed to the accident. However, the accident construction expert was able to render his opinion on defendant’s fault without ever having reviewed the defendant’s medical records.

The plaintiffs sought and obtained the petitioner’s medical records and deposed his treating physicians over the defendant’s objection and request for a protective order.

Subsequent to getting defendant’s medical records, plaintiffs requested that the defendant be subjected to a compulsory neurological exam. The defendant objected, but that objection was not heard. Prior to trial with no action having been taken on the defendant’s objection, the plaintiff’s expert opined that the defendant was suffering from dementia at the time of the accident, even though none of the defendant’s treating physicians had ever diagnosed him with that condition. The trial judge then ordered the CME.

The Fourth District reversed. It ruled that the defendant had never voluntarily placed his condition into controversy, and therefore, there had to be great care taken to ensure that good cause existed for such an examination which invaded the privacy rights of the person to be examined. A party must satisfy both elements of Rule 1.360 requiring a focus on the defendant’s conduct, and not on his mental state.

The court reasoned that here it was not the defendant’s mental or physical health that was at issue, but rather his conduct; i.e., whether he was negligent in failing to avoid a car that veered into his lane of traffic. Either way, the physical health of the defendant was not material because if he was negligent, he was negligent.

The court quashed the order, and supported its decision by noting that the accident reconstruction expert was able to render his opinion without even having the defendant’s medical records.

NO ERROR IN AWARDING EXPERT WITNESS COSTS FOR AN EXPERT WHO DID NOT TESTIFY AT TRIAL FOR THE EXPERT’S PREPARATION OF A REPORT ORDERED BY THE COURT

Albanese Popkin Huges Cove, Inc. v. Scharlin, 39 Fla. L. Weekly D1427 (Fla. 3rd DCA July 9, 2014).

BASED ON A RULING BY THE SUPREME COURT, THE COURT ON REHEARING FOUND THAT THE DEFINITION OF DISCRIMINATION BASED ON SEX IN THE FLORIDA CIVIL RIGHTS ACT, INCLUDES DISCRIMINATION ON THE BASIS OF PREGNANCY

Lemus v. Shrimp Market of South Florida, 39 Fla. L. Weekly D1437 (Fla. 3rd DCA July 9, 2014).

WHILE COURT COULD COMPEL PLAINTIFF WHO SURVIVED DOG BITE AND CLAIMED DAMAGES FOR MENTAL ANGUISH TO SUBMIT TO A PSYCHOLOGICAL CME, IT COULD NOT DO SO WITHOUT SPECIFYING THE TIME, PLACE, MANNER, CONDITIONS AND SCOPE OF EXAM

Maddox v. Bullard, 39 Fla. L. Weekly D1438 (Fla. 5th DCA July 11, 2014):

While the court was within its rights to order the compulsory psychological examination, the trial court’s order specified only the time, place, and the name of the psychologist who had performed the exam. Plaintiff’s counsel had asked the trial court to define the boundaries of the examination, but the trial court declined to do so.

Parties who show good cause for compelling examinations, do not have “carte blanche” to perform any type and manner of psychological inquiry, testing, and analysis for hours on end. For those reasons, the court granted the petition, to the extent that it compelled the plaintiff to submit to a psychological examination without specifying the time, place, manner, and conditions and scope of the examination.

WHEN INSURER ASSERTS IT WILL NOT PAY CLAIMS UNTIL PROVIDER PRODUCES REQUESTED DOCUMENTS, FORCING PROVIDER TO FILE DECLARATORY JUDGMENT SUIT IN A PIP CASE, THE INSURER’S PAYMENT OF THE CLAIM LATER, CONSTITUTES A CONFESSION OF JUDGMENT ENTITLING THE PROVIDER TO ATTORNEY’S FEES

Tampa Chiropractic v. State Farm, 39 Fla. L. Weekly D1441 (Fla. 5th DCA July 11, 2014).

Kind regards

Julie Littky-Rubin