47 Fla. L. Weekly D343b

SHAWN LOWITZ, individually, and SHAWN LOWITZ, as Personal Representative of the Estate of David A. Lowitz, Deceased, Petitioner, v. SOUTH ALABAMA BRICK COMPANY, INC. d/b/a W.R. TAYLOR & COMPANY and CHRISTIAN SENN, Respondents. 1st District. Case No. 1D21-1555. February 2, 2022. Petition for Writ of Certiorari — Original Jurisdiction. Counsel: John W. Wesley, Wesley, McGrail & Wesley, Fort Walton Beach, for Petitioner. Jack R. Reiter and Robert C. Weill, GrayRobinson, P.A., Miami, and Peter S. Roumbos, Quintairos, Prieto, Wood & Boyer, P.A., Pensacola, for Respondents.

(B.L. THOMAS, J.) Petitioner brought a wrongful death action against Respondents for the death of David Lowitz. Petitioner’s alleged damages included loss of support and services, loss of companionship and protection, mental pain and anguish, and loss of prospective net accumulations of Mr. Lowitz’s estate. Respondents raised comparative fault as an affirmative defense. Respondents then filed a notice of production from non-parties and served a subpoena duces tecum ordering Mr. Lowitz’s mental health care provider to produce records related to his treatment of Mr. Lowitz. Petitioner objected and moved for a protective order. Respondents moved to strike the objection. The trial court granted Respondents’ motion allowing them to discover Mr. Lowitz’s mental health records. The order did not state that the trial court would conduct an in camera review of the records. Petitioner timely filed this petition and this court ordered Respondents to show cause.

“[C]ertiorari is a proper vehicle to review orders compelling the production of records that are protected by the psychotherapist-patient privilege.” S.P. ex rel. R.P. v. Vecchio, 162 So. 3d 75, 79 (Fla. 1st DCA 2014). If Petitioner shows a preliminary basis for relief, then Respondents bear the burden of showing why relief should not be granted. See Fla. R. App. P. 9.100(h).

A successful petition “must demonstrate that the contested order constitutes ‘(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case[,] (3) that cannot be corrected on postjudgment appeal.’ ” Bd. of Trs. of Internal Improvement Tr. Fund v. Am. Educ. Enters., LLC, 99 So. 3d 450, 454 (Fla. 2012) (quoting Reeves v. Fleetwood Homes of Fla., Inc., 889 So. 2d 812, 822 (Fla. 2004)). This Court must first determine factors two and three: the “irreparable harm” prong. Craig-Myers v. Otis Elevator Co., 313 So. 3d 150, 151 (Fla. 1st DCA 2020) (citing CVS Caremark Corp. v. Latour, 109 So. 3d 1232, 1234 (Fla 1st DCA 2013)). The petition must satisfy the “irreparable harm” prong for this Court to have jurisdiction. Id.

The petition here satisfies the “irreparable harm” prong. An order requiring the disclosure of communications between a patient and a psychotherapist that are made for the purpose of diagnosis or treatment constitutes irreparable harm. See Zarzaur v. Zarzaur, 213 So. 3d. 1115, 1117 (Fla. 1st DCA 2017) (“Erroneous disclosure of medical records qualifies as irremediable harm.”). The trial court’s order departs from the essential requirements of law because it did not require an in camera review of the records to ensure only relevant records were produced. See id. at 1120.

Mr. Lowitz’s mental health records are relevant and discoverable because they relate to Petitioner’s alleged damages. Russell v. Stardust Cruisers, Inc., 690 So. 2d 743, 745 (Fla. 5th DCA 1997) (citing Appel v. Quilantang, 629 So. 2d 1004, 1005 (Fla. 4th DCA 1993)); § 90.503(4)(c), Fla. Stat. (2020) (stating that “[t]here is no privilege . . . after the patient’s death, in any proceeding in which any party relies upon the condition as an element of the party’s claim or defense”) (emphasis added). Thus, the trial court must conduct an in camera review before Respondents may discover Mr. Lowitz’s mental health records “to ensure that only relevant records are produced . . . .” Whittington v. Whittington, No. 1D21-2117, 2021 WL 5915648, at *1 (Fla. 1st DCA Dec. 15, 2021) (citations omitted).

Accordingly, this Court GRANTS the petition, QUASHES the trial court’s order, and REMANDS the case for proceedings consistent with this opinion. (MAKAR and NORDBY, JJ., concur.)* * *