Civil
procedure — Discovery — Independent medical examination — Trial court
departed from essential requirements of law in requiring non-resident
defendant, who had not sought affirmative relief in Florida courts, to appear
for an independent medical examination in Florida

STEPHEN
A. BODZIN, an individual, and BODZIN & GOLUB, P.C., Petitioners, v. DIANA
LEVITER, as Personal Representative of the Estate of SOL LEVITER, and next of
kin of SOL LEVITER, and DIANA LEVITER, an individual, Respondent. 4th District.
Case No. 4D15-2122. September 9, 2015. Petition for writ of certiorari to the
Circuit Court for the Seventeenth Judicial Circuit, Broward County; Cynthia
Imperato, Judge; L.T. Case No. 10-28662 21. Counsel: Jerome R. Silverberg and
Sorraya M. Solages-Jones of Lewis Brisbois Bisgaard & Smith LLP, Fort
Lauderdale, for petitioner. Robert A. Stok and Brian H. McGuire of Stok Folk +
Kon, Aventura, for respondent.

(WARNER,
J.) We grant the petition for certiorari. The trial court departed from the
essential requirements of law in requiring the non-resident defendant, who has
not sought affirmative relief in the Florida courts, to appear for an
independent medical examination in Florida. See Youngblood v. Michaud, 593
So. 2d 568 (Fla. 4th DCA 1992) (independent medical examination of defendant
should occur only in county of defendant’s residence).

Respondent’s
reliance on McKenney v. Airport Rent-A-Car, Inc., 686 So. 2d 771 (Fla.
4th DCA 1997), is misplaced. There, the trial court required a plaintiff to
appear for an independent medical examination in the county where the plaintiff
filed suit, and our court concluded that the trial court did not abuse its
discretion. In those circumstances, we concluded that Youngblood did not
constitute a “hard and fast rule” requiring an IME to be performed in the
county of the plaintiff’s residence. Where a plaintiff is seeking affirmative
relief based upon his/her medical condition, an IME at a location different
than the plaintiff’s place of residence may be required, because experts
necessary to review the plaintiff’s condition may not be available there. Id.
Here, the gravamen of the cause of action in this case — investment fraud
— has nothing to do with defendant’s condition. Thus, Youngblood, and
not McKenney, is on point.

Respondent’s
purpose in seeking an examination of the petitioner/defendant is to determine
his capacity to testify, after his counsel alleged that he was incapacitated by
Alzheimer’s disease. Respondent claims that petitioner has the capacity to
testify, and in some statements under oath, petitioner agrees. Petitioner has
given multiple depositions in this case without having raised incapacity to
testify at those depositions. Moreover, respondent already has received
petitioner’s medical records, retained an expert to review those records and
form an opinion as to petitioner’s capacity, and found substantial other
evidence to support her contention that petitioner is not incapacitated. Even
without an IME, if respondent does not wish to have one performed in
petitioner’s home state, there is substantial evidence from which a trial court
can determine whether petitioner is incapacitated from testifying.

There
is no rule or statute which requires the defendant to testify at the trial. See
Graber v. Gassman, 321 So. 2d 82, 83 (Fla. 3d DCA 1975). Obviously,
petitioner does not intend to testify at trial, and there is nothing in this
record to show that respondent has subpoenaed him and intends to call him as a
witness. Although petitioner does not object to the examination, he objects to
an examination outside of his state of residence. If respondent still wishes to
obtain an examination, she must schedule one there. (LEVINE, J., concurs.
CONNER, J., dissents with opinion.)

__________________

(CONNER,
J., dissenting.) The majority agrees with petitioner that Youngblood v.
Michaud, 593 So. 2d 568 (Fla. 4th DCA 1992), controls the disposition of
petition. I disagree and respectfully dissent for the reasons discussed below.

First,
Youngblood consists of one relatively short substantive paragraph, with
very little discussion of the facts and legal analysis. As pointed out in our
subsequent opinion in McKenney v. Airport Rent-A-Car, 686 So 2d 771, 772
(Fla. 4th DCA), Youngblood seemingly premised its reversal by comparing
a requirement that a defendant travel outside the county of his residence for a
medical examination to a requirement that a defendant travel outside the county
of his residence for a deposition. Youngblood, 593 So. 2d at 569. In McKenney,
we clearly rejected the argument “that Youngblood established a hard and
fast rule regarding the location of an independent medical examination.” McKenney,
686 So. 2d at 772. We also noted that the Florida rule on compulsory
examinations is patterned after the federal rule, and the federal rule has been
interpreted to give the court the discretion to determine the location of the
examination to facilitate the presentation of evidence. Id. We concluded
certiorari relief was inappropriate because the trial court did not abuse its
discretion in requiring the plaintiff to travel from his home county for a
medical examination in the county where the suit was pending. Id. at
773.

The
majority opinion in this case holds that a trial court departs from the
essential requirements of law when it orders a non-resident defendant to travel
to Florida for a medical examination. The premise of the position is that a
defendant should not be required to travel to Florida unless the defendant
seeks affirmative relief. In support of the premise, the majority cites to Youngblood.
The majority then asserts that McKenney stands for the proposition that
a plaintiff can be required to travel beyond the county of residence because
the plaintiff is seeking affirmative relief. Next, the majority contends “the
gravamen of the cause of action in this case — investment fraud — has nothing
to do with the defendant’s [petitioner’s] condition.” For those reasons, the
majority concludes Youngblood is on point and McKenney is not.

I
respectfully disagree with the majority. Florida Rule of Civil Procedure 1.360
does not limit its application to a party seeking affirmative relief.
Instead, the rule allows for the examination of a party “when the condition
that is the subject of the requested examination is in controversy.” Fla.
R. Civ. Proc. 1.360(a)(1) (emphasis added).1 I disagree that the rule works differently
depending on whether it is a plaintiff or defendant being examined. I have
found no case law in Florida that holds the rule works differently, depending
on which party is being examined.2

My
research has revealed there are very few cases in Florida, or nationally, that
address the issue of the trial court’s discretion in determining the place of a
medical examination of a defendant pursuant to statutes or procedural rules in
civil cases when it is the defendant putting his or her medical status
in controversy.3 In fact, Youngblood is the only case
in Florida addressing the propriety of the place for a medical examination of a
defendant in a civil proceeding. The lack of civil cases addressing the medical
examination of a defendant is not surprising, since it is not typical for a
defendant to raise a defense which makes an issue of his or her physical or
mental status. It is even less typical for a defendant to assert his mental
status as a defensive move to block or erode the evidentiary value of his prior
testimony, which is the situation in this case. However, it is clear that it is
the defendant who has put his mental status at issue in this
case. It is debatable, given the procedural maneuverings by the defense in this
case, whether the defendant is using his mental status as a sword, shield, or
both.4

Of
all the districts, the Fifth District has issued the most opinions regarding a
trial court’s discretion in determining the place for a medical examination.
All of the cases address a medical examination of the plaintiff. Although some
of the caselaw in the Fifth District has mentioned that the plaintiff has
sought affirmative relief by bringing the action, which is pertinent to the
issue of the place for depositions, the Fifth District has squarely said
“[d]epositions and [medical examinations] are simply not the same” and “[w]hat
the courts have held to be a reasonable place in the context of medical exams
is not necessarily the same as for depositions.” Tsutras v. Duhe, 685
So. 2d 979, 980-81 (Fla. 5th DCA 1997). In Tsutras, the court addressed
the issue of the proper place for a medical examination when the plaintiff
resides outside of Florida. Id. at 980. The court said, generally
speaking:

If the defendant
desires a medical examination it must be done in the resident county or state
of the plaintiff, or any other place where she may be found and by a doctor of
defendant’s choice.

Id.
at
981. However, the court went on to observe that “[o]bviously, the availability
of the appropriate medical speciality will influence the extent to which the
nonresident plaintiff may be accommodated.” Id. The court then noted a
Tennessee opinion which “found that it was not an abuse of discretion for the
trial court to require a [medical examination] of a nonresident plaintiff if
the exam was to be performed ‘while she was to be in Memphis for her discovery
deposition.’ ” Id. (citing Kibbler v. Richards Med. Co., 1992 WL
233027 (Tenn. App. Sept. 23, 1992)).5

More
recently, the Fifth District has upheld a trial court order requiring a
nonresident plaintiff to attend a medical examination in Florida, at the
plaintiff’s expense, because the plaintiff had not been “forthcoming” in
answering questions in his first deposition, taken in Florida, thus prompting
the need for a second deposition. Goeddel v. Davis, 993 So. 2d 99, 100
(Fla. 5th DCA 2008). The Fifth District found no error in requiring the
plaintiff to attend a medical examination in Florida while here for the second
deposition, again citing Kibbler. Id.

In
this case, there is no transcript of the pre-trial calendar call hearing which
resulted in the order under review.6 The respondents, two days prior to the
calendar call, filed a motion to compel the petitioner’s appearance at the
hearing, scheduled by the petitioner, to determine his competency to testify.
The trial was scheduled to occur approximately two months after the calendar
call. In addition to seeking an order compelling petitioner’s attendance at the
hearing, respondents sought an order compelling a medical examination of
petitioner while in Florida to attend the hearing on his competency to testify.
Although petitioner contends in his petition before this court that the trial
court ordered him to attend the hearing to determine his competence to testify,
the written order under review does not so state.7 However, if the trial court was satisfied
at the calendar call that the petitioner would be attending the
evidentiary hearing on his motion to determine competence to testify, even
voluntarily, I conclude the trial court did not abuse its discretion, given the
procedural defensive maneuvers by petitioner, in requiring petitioner to submit
to a medical examination while in Florida. Like the Fifth District, I agree the
trial court should have the discretion to follow the reasoning of Kibbler,
particularly when that will facilitate the presentation of evidence.

__________________

1The United
States Supreme Court, in construing Rule 35, upon which rule 1.360 was
patterned, has stated “Rule 35 on its face applies to all ‘parties,’ which
under any normal reading would include a defendant.” Schlagenhauf v. Holder,
379 U.S. 104, 112 (1964).

2The Second
District seemingly agrees the rule does not work differently depending on which
party is being examined. In State Farm Mutual Automobile Insurance Co. v.
Shepard, 644 So. 2d 111 (Fla. 2d DCA 1994), the court stated the trial
court did not err in requiring the plaintiff to be examined in the
county of her residence, citing Youngblood.

3In cases in
which the plaintiff puts the defendant’s medical condition in
controversy, one can surmise that there is an assumption the examination must
be conducted in the county where the defendant resides, and the parties agree
to the place of the examination without a fight and thus no appellate issue is
created.

4Early on in this
case, an order was entered pursuant to Florida Rule of Judicial Administration
2.545(c) to give this case priority status in the trial court due to the
advanced ages of both plaintiffs (respondents). One of the elderly plaintiffs
has since died. At the time suit was filed, both plaintiffs were older than the
petitioner.

5The dissent in Tsutras
would have granted more discretion to the trial court than the majority in
determining the place for a medical examination. 685 So. 2d at 982 (Goshorn, J.,
dissenting).

6On our order to
supplement the record on appeal, the parties have advised there was no court
reporter at the calendar call.

7The order on
review simply sets the date and time of the hearing to determine the
petitioner’s competency to testify. If the trial court orally announced
the petitioner must attend the hearing, it was not reduced to writing, and
therefore not enforceable. Absent a court order for the petitioner to appear,
the only other vehicle for the respondent to compel the petitioner’s attendance
at an evidentiary hearing is service of a subpoena.

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