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June 19, 2014 by admin

Automobile accident — IMEs– Where Plaintiff sued three separate defendants, error to require defendants to share single IME doctor per specialty

39 Fla. L. Weekly D1245b


Torts — Automobile accident — Discovery — Independent
medical examination — Where plaintiff sued three defendants for injuries
sustained in three separate accidents, alleging that injuries from the three
accidents are indivisible and superimposed upon one another, it was a departure
from essential requirements of law to limit all three defendants to one
orthopedic IME — Because defendants are adverse to each other it was improper
to limit all defendants to a single shared IME per specialty



PEDRO GOICOCHEA, Petitioner, vs. MEENA LOPEZ, et al., Respondents. 3rd
District. Case No. 3D14-873. L.T. Case No. 11-20760. Opinion filed June 11,
2014. A Writ of Certiorari to the Circuit Court for Miami-Dade County, Gisela
Cardonne Ely, Judge. Counsel: Cooney Trybus Kwavnick Peets, and Warren Kwavnick
(Fort Lauderdale), for petitioner. SteinLaw, P.A., and Brandon E. Stein; Law
Office of Timothy Harrington, and Ryan Charles Penta; Cole Scott & Kissane,
P.A., and Michael Elias Brand; Robert D. Phillips; Clark, Robb, Mason, Coulombe
& Bushman, and Mark S. Muschman; Green, Murphy & Murphy, P.A., and John
J. Murphy (Fort Lauderdale), for respondents.
(Before ROTHENBERG, SALTER, and FERNANDEZ, JJ.)
(ROTHENBERG, Judge.) Pedro Goicochea (“Goicochea”) seeks certiorari review of
the trial court’s non-final order that “sustained” Meena Lopez’s (“Plaintiff”)
motion for a protective order and limited Goicochea and the other co-defendants
to a single independent medical examination (“IME”) “per [medical] specialty.”
We grant the petition for writ of certiorari and quash the order under review.
The Plaintiff sued several defendants, including Goicochea, for alleged
injuries she sustained during three separate and unrelated automobile accidents
that occurred in July 2007, November 2007, and January 2009. The Plaintiff
alleged in her complaint that her injuries from these three accidents are
“indivisible and superimposed upon one another and the Plaintiff is unable to
apportion her damages between them.” Goicochea denied these allegations.
Goicochea, who was one of the drivers involved in the November 2007 accident,
requested that the Plaintiff submit to an orthopedic IME by Dr. Phillip Lozman
pursuant to Florida Rule of Civil Procedure 1.360(a)(1)(A).1 Thereafter, two of the defendants that were sued
for the July 2007 accident — Maria Machado and Luis Delgado — filed a request
for the Plaintiff to submit to an orthopedic IME by Dr. Rolando Garcia under the
same provision.
In response to the requests for IMEs, the Plaintiff filed a motion for a
protective order, seeking to limit all defendants to one orthopedic IME under
rule 1.360. In support of her position, the Plaintiff cited Royal Caribbean
Cruises, Ltd. v. Cox
, 974 So. 2d 462, 465 (Fla. 3d DCA 2008), which held:
“[W]hen a defendant requests a subsequent IME, the defendant should make
a stronger showing of necessity before the request is authorized.” The trial
court ruled that the motion is “sustained as to one (1) IME per [medical]
specialty.” Goicochea’s petition for writ of certiorari followed.
Goicochea argues that the trial court departed from the essential
requirements of law by limiting all defendants to a single IME per specialty,
and that this departure will subject him to irreparable harm that cannot be
remedied on appeal. We agree.
The Plaintiff’s reliance on Cox when seeking to limit the defendants’
collective IMEs to one per specialty was misplaced, as Cox is clearly
distinguishable from the instant case. In Cox, the same defendant, Royal
Caribbean Cruises, Ltd. (“RCCL”), sought to subject Cox to a second IME by its
orthopedic expert, Dr. Wilkerson, after Cox underwent a second surgery on his
left shoulder. In response, Cox argued that rule 1.360 does not allow multiple
examination for the same injury. The trial court denied RCCL’s request for the
second orthopedic IME, and, thereafter, RCCL petitioned this Court for a writ of
certiorari. This Court granted the petition and stated:

In a negligence action where a plaintiff asserts that he or she has
sustained mental or physical injuries, the defendant’s good cause for conducting
the initial IME is normally shown without any further inquiry. However,
when a defendant requests a subsequent IME, the defendant should make a stronger
showing of necessity before that request is authorized.

Cox, 974 So. 2d at 465 (citation omitted). This Court ultimately
concluded that “because Cox’s physical condition underwent a substantial change
after Dr. Wilkerson’s first IME, RCCL has proven good cause for requesting and
conducting another IME.”
Unlike Cox, the same defendant has not requested that the Plaintiff
submit to a second orthopedic IME. Rather, entirely separate codefendants, who
are adverse to each other based on the allegations set forth in the Plaintiff’s
complaint, have requested that the Plaintiff submit to their own orthopedic IME
under rule 1.360. As stated earlier, the Plaintiff sued several defendants for
injuries she allegedly sustained during three separate and unrelated automobile
accidents, alleging that her injuries are “indivisible” and she “is unable to
apportion her damages between” the numerous defendants. Based on these
allegations, the Plaintiff has pitted codefendant against codefendant, with each
codefendant attempting to establish that the Plaintiff’s alleged injuries are
not a result of their specific negligence, but are instead attributable to at
least one of the other two automobile accidents. Therefore, because the
defendants in this case are adverse to each other, the trial court departed from
the essential requirements of law by limiting all defendants to a single shared
“IME per specialty,” thereby failing to afford Goicochea and the other
defendants the benefit of rule 1.360(a)(1)(A). Further, the trial court’s
departure will subject Goicochea to irreparable harm that cannot be remedied on
appeal. Cox, 974 So. 2d at 465-68. Accordingly, we grant the petition for
writ of certiorari and quash the order under review.
Petition granted; order quashed.

__________________

1Florida Rule of Civil Procedure 1.360
provides in relevant part as follows:

Rule 1.360. Examination of Persons

(a) Request; Scope.

(1) A party may request any other party to submit to, or to produce
a person in that other party’s custody or legal control for, examination by a
qualified expert when the condition that is the subject of the requested
examination is in controversy.

(A) When the physical condition of a party or other person under
subdivision (a)(1) is in controversy, the request may be served on the plaintiff
without leave of court after commencement of the action . . . .

* * *

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