11 Fla. L. Weekly Supp. 25a
Insurance — Personal injury protection — Discovery — Videotape of compulsory physical examination — Plaintiff’s use of his privacy rights as grounds to prevent production of video of physical examination is not persuasive where plaintiff requested intrusion into his privacy by requesting presence of videographer at exam — Privilege — Work product — Video of examination is not akin to a surveillance video taken of personal injury claimant by insurer where video is not result of clandestine unilateral investigation, but was created by permission of the court to benefit both parties by avoiding additional disputes — Even if video were work product, circumstances would warrant its production where there is no suggestion that video contains mental impressions, conclusions, opinions or legal theories of counsel or that review of tape would disclose strategic, confidential or privileged information, there is no indication that any prejudice would inure to plaintiff if tape was made available to insurer, and insurer cannot obtain precise record of physical exam in any other fashion
STEVEN W. KIRK, Plaintiff, v. NANCY BLACK SULTE, individually and as Personal Representative of the Estate of ROBERT P. SULTE III, deceased; and AUTO OWNERS INSURANCE COMPANY, Defendants. Circuit Court, 6th Judicial Circuit in and for Pinellas County. Case No. 02-6456-CI-13. November 12, 2003. Anthony Rondolino, Judge. Counsel: Roy L. Glass. David J. Abbey, Abbey, Adams, Byelick, Kiernan, Mueller & Lancaster, St. Petersburg. Kim M. Murano.
ORDER
This cause came before the court upon the Defendants, NANCY BLACK SULTE, individually and as Personal Representative of the Estate of ROBERT P. SULTE, III, deceased; and AUTO OWNERS INSURANCE COMPANY, Motion to Compel Production. The parties find themselves at odds over the production of a videotape taken at a compulsory physical examination of the Plaintiff. The Plaintiff asserts “his” work product video should not be revealed to the Defendant. On the other hand, the Defendant says it is merely a record of a court ordered proceeding.
The issue presented in this matter represents one of many problems which emanate from the rule authorizing a compulsory physical examination of a Plaintiff during litigation over a claimed injury. Trial judges are regularly faced with a broad variety of disputes concerning the implementation of such exams and the lack of specific rules governing the process adds to the frustration of the court, the parties and others involved.
In simpler times no such problems existed. The United States Supreme Court first addressed a court’s authority to compel physical examinations in Union Pacific Railway Company v. Botsford, 141 U.S. 250 (1891). The High Court noted at page 254:
“So far as the books within our reach show, no order to inspect the body of a party in a personal action appears to have been made, or even moved for, in any of the English courts of common law, at any period of their briefing.”
The case went on to hold the courts of the United States lacked any common law power to issue such an order. At the time no state or federal statute or rule existed which would authorize examinations of a litigant. Subsequently individual states began passing laws for this purpose. Later, Rule 35 was adopted as part of the Federal Rules of Civil Procedure and provided authority for the court to order and control such examinations. This rule was challenged and the U.S. Supreme Court upheld the rule and the power of the court to impose sanctions for non-compliance in Sibbach v. Wilson & Co., 312 U.S. 1 (1941). The Court noted that as of that time the rule was in conformity with several state laws and also procedures then in force in Canada and England.
In Florida the state Supreme Court first adopted such a rule in 1972, see In Re: The Florida Bar, 265 So.2d 21 (Fla. 1972). The F.R.C.P. Rule 1.360, is derived from Federal Rule 35 and vests the power in the trial court to order the examination of any party or person under their control. It is evident that this rule intends the trial court to be the ultimate decision maker regarding not only authorization of the examination but all matters related to it. The rule specifically refers to the time, place, manner, conditions and scope of this examination and that the court may establish rules governing it. Thus, it is clear the matter is within the sound discretion of the judge.
Case law has developed related to the courts exercise of this discretionary control of compulsory examinations. Decisions based upon F.R.C.P. 1.360 and the workers compensation provisions in F.S. 440.13(2)(b) give guidance to trial judges and lawyers dealing with these exams, however because of the variety of circumstances which can arise the implementation of fair uniform procedures remains elusive.
Gibson v. Gibson, 456 So.2d 1320 (Fla. 4th DCA 1984) is apparently the first case in Florida to address the exercise of discretion in relation to this rule. The Fourth District reversed a trial judge who refused a petitioner’s request to have a court reporter present during her compulsory psychiatric examination. It is important to note that the appellate court found the dissenting opinion in Edwards v. Superior Court of Santa Clara County, 549 P.2d 846 (Cal. 1976) persuasive. A review of Judge Sullivan’s dissent in Edwards reveals the background of the California law and the basis for his opinion as well as this seminal Florida case.
The California courts had addressed the question of compulsory examines in civil cases starting with Johnston v. Southern Pac. Co., 89 P.348 (Cal. 1907) which found the courts had the power to order and control such discovery. Later, in 1955, a California trial judge ordered a physical exam and excluded the plaintiff’s attorney who sought permission to be present. The Supreme Court of California in Sharff v. Superior Court, 289 P.2d 896 (Cal. 1955) decided the lawyer should be allowed to be present. The reasons expressed were,
“Whenever a doctor selected by the defendant conducts a physical examination of the plaintiff, there is a possibility that improper questions may be asked, and a lay person should not be expected to evaluate the propriety of every question at his peril.” (id. at page 897)
Subsequently, the California Code of Civil Procedure, Section 2032 was enacted in 1957 and it provided specific authority for physical or mental examinations very similar to F.R.C.P. 1.360. Their Supreme Court addressed section 2032 in Gonzi v. Superior Court, 335 P.2d 97 (Cal. 1959) and found that although the rule provided for a report of the examining physician the report was not a sufficient substitute for a transcript of the proceedings. The court said,
“If an injured plaintiff is not permitted to have a reporter present at the court ordered examination by defendant’s doctor there is no disinterested person present to report or later testify to, what occurred during the examination. If the defense-employed doctor is called upon to testify at trial on the issue of plaintiff’s injuries his version of the questions and answers elicited might differ materially from plaintiff’s counsel’s version of the same questions and answers. It appears to us that orderly procedure in the administration of justice requires that permission be granted at the request of either party for a reporters presence in such a situation as is here presented.” (id. at page 99)
Thus, by the time of the Edwards decision and the Sullivan dissent, the California courts had recognized the need to control the adversarial examination process. Allowing plaintiffs’ counsel to be present to guard against improper questioning was one solution. Another was the use of a reporter or recording device to avoid conflicts regarding what conversations occurred during the interview of the patient.
Although the Edwards case involves the additional complication of a psychiatric exam as opposed to a purely physical exam, the difference did not influence the dissent. Judge Sullivan’s analysis rested upon the more general and fundamental reason previously considered in the case law. The reason was that the examination and questioning of one party by a representative of the other party was clearly adversarial.
His dissent points out that the examination in Durst v. Superior Court, 272 Cal. App. 2d 447 (1963) which was relied upon by the majority opinion, was different because it involved a court appointed impartial doctor. The court in Durst had indicated,
“It may not be said here that there will be no disinterested person present to report, or later to testify to what occurred during the examination. Dr. Brill is being appointed by the court because he is disinterested, impartial and qualified. His primary function is to report to the court as to what occurred during the examination and his findings as a result thereof. Therefore, the rights of the plaintiff will be adequately protected without the presence of counsel or a reporter.” (id. at page 450)
The Durst opinion also noted that Gonzi in it’s analysis of adversary examinations revealed the California Supreme Court “felt that the presence of a reporter was a prerequisite to justice if either party so requested”. (emphasis added)
Therefore, the Sullivan dissent and the California cases which form the foundation for the Florida Gibson opinion are all premised upon the recognition that the trial court must take certain protective measures to avoid improper questioning and disputes over what transpired at these adversary exams.
Based on this premise, a Fourth District in the Gibson opinion recognized the need to have a court reporter present even though both sides were already authorized to have counsel present for the exam. Since this is the first appellate decision dealing with the issue in Florida the rationale announced by the Gibson court is particularly significant.
“In our view the petitioner should have the right, where the means are available as they are here, to preserve by objective means the precise communications that occur during the course of the examination. Any concerns about rapport and candor should give way to this right since otherwise the petitioner will be compelled to challenge the credibility of the examiner should a dispute later arise as to what took place. Such a dispute would be obviated by the presence of a means of recording the interview. Both the examiner and patient should benefit by the objective recording of the proceedings, and the integrity and value of the examination as evidence in the judicial proceedings should be enhanced. (emphasis added)
Bartell v. McCarrick, 498 So.2d 1378 (Fla. 4th DCA 1986) appears to be the second case in Florida examining the question of a trial court’s discretion to control such proceedings. There the Fourth District Court of Appeals determined the burden of proof rested upon the party opposing third party attendance to show why the court should deny the examiner’s right to have a representative present.
In the Bartell opinion the court pointed to three cases from other jurisdictions which typify what they considered to be the general rule. The court quoted portions of California, Tennessee and New York decisions which all dealt with the specific concern related to protecting the unaccompanied party examinee from adversary questioning by the defendant’s doctor.
The next year in High v. Burrell, 509 So.2d 385 (Fla. 5th DCA 1987) the Fifth District Court of Appeals reviewed a trial judge’s order allowing counsel for both parties and a court reporter to be present. The Appellate court approved this discretionary decision and noted the similarity which existed with Gibson. The opinion indicated that while no hard and fast rule was possible, generally speaking the patient should be allowed to have some representative present.
The Second District Court of Appeals had their first opportunity to write on the subject in 1989. In Stakley v. Allstate Ins. Co., 547 So.2d 275 (Fla. 2nd DCA 1989) the court reviewed a trial court order prohibiting a court reporter at a 1.360 exam. The holding was extremely limited since the trial court was merely exercising an arbitrary “policy” not to permit court reporters at such examinations and thus had not actually exercised sound discretion. The opinion does appear to adopt the Bartell rule which placed the burden upon a party opposing such requests to show why it should be denied.
Four Florida cases focused on the rule in 1991. The first was Truesdale v. Landau, 573 So.2d 429 (Fla. 5th DCA 1991). Again the trial judge refused to allow a requested court reporter based not on particular facts but upon his general belief that the presence of a reporter had a chilling effect upon the proceeding. Like the Stakley case the Fifth District Court of Appeals reversed this decision. Since no showing had been made by the defense that the examination could not be done with a court reporter present the denial was in error.
Three months later the Second District Court of Appeals decided Collins v. Skinner, 576 So.2d 1377 (Fla. 2nd DCA 1991). Again a plaintiff sought to have a court reporter present at a compulsory physical exam. The Collins opinion held that a general objection that the court reporters presence would “interfere” with the physical exam was not a valid reason to exclude the reporter. The court also indicated that the trial judge’s observation that a court reporter would be unable to transcribe the demeanor or tone of voice of the participants was also not a valid reason for denial.
Two months later the First District Court of Appeals made its initial decision on the subject. In Toucet v. BIG Bend Moving and Storage, Inc., 581 So.2d 952 (Fla. 1st DCA 1991) the court approved the trial judge’s refusal to allow a plaintiff to choose who the examining physician would be. However, the court also reversed the judge’s exclusion of the examinee’s lawyer. The opinion notes the prior Florida decisions on the subject and quoted selected portions from several. The clear implication from the Toucet opinion is that the First District agreed with the proposition that the examination involves an adversarial oral questioning of the party and based its decision on this view. The record points out the attorney’s request was specifically that he be present only for that portion of the exam which involved interrogation by the doctor. Reversing the trial judge the appellate court indicated there was no evidence offered that the attorney’s presence would be disruptive and that general concerns it would alter the normal examination process were insufficient.
In late 1991 the Third District Court of Appeals entered the arena by publishing Medrano v. BEC Construction Corporation, 588 So.2d 1056 (Fla. 3rd DCA 1991). This decision must be reviewed carefully lest it appear to contradict or conflict with the previously discussed Florida cases. In Medrano, the plaintiff was compelled to a neuropsychological assessment and requested either to have counsel present and/or to have it videotaped. The physician objected but agreed to audio tape the examination. The court denied the plaintiff’s request to video but ordered the audio recording of the proceedings. In affirming the discretionary decision of the judge, the appellate court noted there were “University of Miami experts” who set forth specific objections to the presence of third parties based upon professional standards. The opinion also indicated the provision for the audiotape addressed the plaintiff’s concerns and cited Toucet.
It is necessary to consider the footnote which reveals a failure by the parties to raise the question of whether it was the defendant’s burden to persuade the court regarding exclusion. The comment indicates the court need not address the issue at this time but does go on to cite authorities, all of which appear to support the presumptive right to counsel’s presence. The only reasonable conclusion which can be drawn from the opinion is that the evidence of record adequately supported the trial judge’s exclusion under the unique circumstances presented.
In 1992 the Second District Court of Appeals decided two cases relating to Rule 1.360. Both cases provide important guidance regarding the power of the trial judge to reasonably limit the presence of third parties at the exam. The first case was Stressman v. Lefler, 597 So.2d 308 (Fla. 2nd DCA 1992). There the plaintiff’s lawyer sought to send a nurse he employed to the examination. There is no indication that counsel sought to attend the examination himself. The trial judge refused to allow the nurse to attend but did allow the presence of a court reporter. The appellate court found the court did not depart from the essential requirements of the law in excluding the nurse.
The comments in this brief decision are particularly important and merit consideration. The opinion notes plaintiff’s counsel correctly argued that he would be entitled to attend but distinguishes the circumstances surrounding a lawyer’s involvement and that of some other third party. The Second District recognized the important fact that the attorney would not be able to testify at trial about the matters observed at the exam. This fact is completely consistent with the entire history of judicial analysis relating to allowing counsel to be present at compulsory exams for the purpose of protecting the client from improper questioning. None of the cases suggest the lawyer is there to become a witness in the event there are subsequent credibility disputes. This is why many cases involve the approval of a court reporter in addition to the presence of counsel.
Secondly, Stressman indicates that the desire of the plaintiff to use the compulsory examination as a vehicle to obtain his own expert testimony is not a sufficient reason to inject a select third party into the process. Again, this is consistent with the rationale that the court is exercising its power to protect the examinee from improper questions and to create an accurate record for the participants in order to avoid unnecessary or unfair credibility disputes. The court is not engaged in a process designed to equitably expand an examinee’s lawyer’s discovery tools.
The Second District Court of Appeals again discussed the rule in McCorkle v. Fast, 599 So.2d 277 (Fla. 2nd DCA 1992). After a personal injury plaintiff requested “an attorney or other representative” to be present, the judge ordered her to attend without third parties present. The appellate court found the record did not support exclusion of the parties’ lawyer. The doctor’s objections standing alone were insufficient. In a final paragraph the opinion seems to once again endorse the power of the trial judge to exclude non-attorney “other representatives” from the exam. The court said,
“While the policy in Stakley and related cases is not limited to attorneys, the trial court retains the authority to bar third-party attendees upon a showing that their presence would be disruptive, superfluous or otherwise inappropriate.”
In 1993 the Second District wrote Wilkins vs. Palumbo, 617 So.2d 850 (Fla. 2nd DCA 1993). The facts involved a trial judge excluding a court reporter because the defendant selected physician refused to conduct the exam if a reporter was present. The opinion discussed the development of the law in this area and noted that the appellate courts had given little guidance to trial judges concerning the factors they should consider in deciding whether to permit a particular third party’s presence.
In reviewing the reasons for allowing certain persons to attend, the Second District discussed the plaintiff’s attorneys search for ways to level the playing field on credibility issues arising from the exams. The court notes most credibility disputes can be eliminated by using a court reporter. As in prior cases, the court found a doctor’s general concerns about potential distractions in the examination are insufficient to overcome the presumption that a court reporter will be an unobtrusive way to obtain an impartial record. The court also indicated that any order excluding a court reporter because of the examiners concerns would need to be based upon an evidentiary hearing which demonstrated the lack of qualified physician in the area willing to perform the compulsory examination.
After confirming the strong presumption extended to the attendance of a court reporter the appellate court turned again to the question of other third parties. The court noted that a request to have someone present to “assist” the party in providing a medical history or other information is questionable. Importantly, the court even includes the attorney in this category. Again this comment is consistent with the reason underlying a “protective order” allowing counsel’s presence. As previously discussed the rationale for presumptively allowing a party’s lawyer to be present is to prevent improper questioning not to permit coaching of the client.
The court also comments on plaintiff’s requests to have a plaintiff’s doctor or nurse present. It is noted that such persons are essentially sought by the examinee’s lawyer for the purpose of validating or disputing the examiners findings. The reference to the Stressman decision indicates the courts feeling this purpose is insufficient to support attendance and the court goes on to include the additional concern that the presence of these opposing experts can pose a substantial distraction during the exam. In their conclusion, the Second District made it clear that the strong presumption which attaches to counsel’s presence or a reporter does not extend to other third parties.
The First District Court of Appeals discussed rule 1.360 in the context of a workers comp case in McClennan v. American Building Maintenance, 648 So.2d 1214 (Fla. 1st DCA 1995). There the claimant sought review of an order which precluded her attorney from attending an independent medical exam under F.S. 440.13(2)(b). The appellate court applied the Toucet and Bartell rationale finding that the claimant was entitled to the same protections. Included in this opinion is the indication that the proper role of counsel is to observe the examination, monitor any discussions between the physician and the claimant, and advise the client when necessary. There was no evidence the attorney would engage in any improper, disruptive or distracting behavior.
In Palank v. CSX Transportation, Inc., 657 So.2d 48 (Fla. 4th DCA 1995) the trial judge had excluded counsel from a psychiatric examination of two minor plaintiffs in a wrongful death action. The court order allowed the mother to accompany the children but also prohibited any sound or video recording of the exam. The Fourth District Court of Appeals found the conflicting evidence did not support the exclusion of the lawyer and a court reporter or tape recording device. The opinion does not appear to require both a reporter and or recording device. It is also unclear whether the court intended to limit any recording to an audiotape rather than a videotape. The opinion remands for an examination
“. . . with the mother, counsel for the plaintiff and a means of recording; either court reporter or a tape recorder present.”
Subsequently, the problem of videotape resurfaced, this time in the Second District. In Broyles v. Reilly, 695 So.2d 832 (Fla. 2nd DCA 1997) the trial judge had been asked to allow a videographer to attend and record a rule 1.360 compulsory physical exam of an auto accident plaintiff. The appellate court held,
“There is no reason that the presence of a videographer at an examination should be treated differently from that of a court reporter.”
In fact, the court even pointed out the Wilkins decision notes that many of the physical aspects of the examination cannot be fully or accurately recorded by a court reporter. Thus, it might be considered that the Broyles court felt the video was better than a reporter for creating the impartial record.
The opinion reviewed the reasons given in opposition which included 1) limited space in the exam room 2) concern the patient would perform for the camera, and 3) the patients privacy and found these perceived problems were insufficient justification to exclude either a court reporter or videographer. The Second District Court of Appeals once more took the opportunity to state in the final paragraph of this decision that:
“We note, however, that it would take an exceptional circumstance to permit anyone other than a videographer or court reporter and the plaintiff’s attorney to be present on behalf of the plaintiff at a compulsory examination held pursuant to rule 1.360.”
Therefore, after Broyles the law in Florida and certainly the Second District Court of Appeals appeared clear. The parties’ lawyer could be present to monitor questioning of the client and a videographer or court reporter could be present to provide a record to avoid disputes about what happened. A strong presumption favored such attendance if represented and the opposing party had the burden of showing “truly extraordinary circumstances” existed requiring exclusion. The necessary proof would include evidence that no other qualified physician in the area would be willing to perform the exam with the attorney, court reporter or videographer present.
On the other hand, the burden regarding any other third party appeared to be on the proponent of that person’s presence and, at least in the Second District, it would take a showing of exceptional circumstances by the proponent to demonstrate an entitlement to attendance.
On January 21, 1998 two separate opinions were handed down from the Second District and Fourth District which dealt with rule 1.360. In Brown v. State Farm Mutual Automobile Insurance Company, 705 So.2d 117 (Fla. 2nd DCA 1998) the court simply reversed a judge’s prohibition of counsel attending the IME. The opinion refers to the Broyles two prong test and notes the lack of evidence in the trial court.
The Fourth District Court of Appeals reversed exclusion of counsel in Brompton v. Poy-Wing, M.D., 704 So. 2d 1127 (Fla. 4th DCA 1998). This case involved a court ordered medical exam of a minor. Apparently the record revealed the judge’s decision was based upon his general belief that such attendance was simply not appropriate. His comments, quoted in the appellate opinion, were not based upon any facts or circumstances presented regarding this particular examination or lawyer.
In late 1998 the Second District wrote Freeman v. Latherow, 722 So.2d 885 (Fla. 2nd DCA 1998). The trial judge was faced with a plaintiff’s request to have counsel and a videographer attend a neuropsychological exam which was to be performed by a defense psychologist. The plaintiff offered to have both counsel and the videographer be present in an adjoining room in order not to disrupt the examination. An evidentiary hearing was held pursuant to Broyles and the defendants presented the psychologist as their only witness.
The appellate court determined that the evidence failed to meet either prong of the Broyles test. With regard to the first prong, the testimony did not provide “case-specific reasons” why the presence of a video camera in the interview room along with the videographer and counsel monitoring the proceeding from an adjacent room would be disruptive. The court discussed the rather general difficulties perceived by the doctor and his conclusory statements. The opinion focuses upon the lack of evidence that these purported problems actually existed in this specific case and the failure to pursue some reasonable methods to avoid the concerns.
As for the second prong the appellate court pointed out the fact that the unavailability of another board certified neuropsychologist was not enough. The lack of available examinees in the area cannot be limited to only those experts with identical credentials but must include experts in the field who “are trained and competent” to perform the needed examination. The case was remanded for further proceedings to allow additional evidence in conformity with the dictates of the opinion.
The Fifth District Court of Appeals held the plaintiff had a right to have a videographer present at a compelled medical examination in Lunceford v. Florida Central Railroad Co., Inc., 728 So.2d 1239 (Fla. 5th DCA 1999). This case plowed new ground relating to the use of videotape of an IME.
The plaintiff requested a videographer. However, the defense expert wanted only a court reporter. The trial judge ruled that the plaintiff had to submit to an exam without a video but that counsel and/or a court reporter could be present. The Fifth District concluded that the trial court departed from the essential requirements of the law in prohibiting the requested videotaping without any valid, case specific objections and that the order caused irreparable harm.
This case is of great interest for two reasons. First is the fact that it elevates the videographer request to a status which exceeds a court reporter to such a degree that the existence of a reporter is deemed an insufficient substitute. The second, and perhaps the most important, is the comment by the court that the videotape is somehow essential to the “ability of the petitioner’s experts to evaluate the orthopedic examination and perhaps impeach the examiner.”
It seems remarkable to this trial judge that defense lawyers are expected to face multiple treating physicians and hired experts who have engaged in examinations of personal injury claimants and must do so without any transcript (much less video) of the exams. These witnesses are permitted to testify to the event and observations upon which their opinions are based. The defendants are unable to have their experts review any video of the plaintiff’s expert examination of the patient to “evaluate” and perhaps use it to “impeach the examiner”. There appears to be no case holding that this purported lack of evidence constitutes some irreparable harm to a defendant’s ability to adequately cross-examine or otherwise prepare to defend the cause.
There also is no Florida case which indicates that the trial court, in exercising its discretion to control these adversary exams, should consider requiring provisions primarily designed to help the examinee in building his own case. In fact, as previously noted above, the Second District in Stressman affirmed the trial judges exclusion of a nurse expert the plaintiff sought to inject into the exam. In addition, the Wilkins decision specifically referred to this portion of Stressman and supported the trial court’s power to exclude other experts whose purpose would be to dispute the examiner’s findings.
The Florida Supreme Court had not become involved in the issues surrounding the rule for 28 years. However, in March of 2000 the High Court had occasions to discuss the subject when it addressed a conflict that had arisen regarding court imposed limitations of PIP examinations under F.S. 627.736(7). In U.S. Security Insurance Company v. Cimino, 754 So.2d 697 (Fla. 2000) the court was reviewing an order which essentially granted a plaintiff’s request that if she went to the insurance IME she could be accompanied by her lawyer and the examination could be videotaped.
The Supreme Court decision noted that the matter of third parties at similar exams pursuant to F.R.C.P. 1.360 and the worker’s compensation provisions had been addressed by numerous district courts. They made an extensive review of such cases and indicated that it is well established that Florida follows a liberal view when determining whether attorneys may attend examinations. The justices concluded that there was no valid reason to apply a different standard for PIP examinations.
In their discussion of the rationale for the decision the court indicated that they were persuaded by the adversary circumstances of these exams. The court adopted the reasoning from the California Sharff opinion expressing the possibility of improper questions by the defense doctor warranted counsel’s presence as long as there was no interference with the examination.
The opinion also quoted from the Wilkins decision of the Second District, which commented on the need to avoid a “swearing contest at trial” about what transpired during the exam. In this regard the Supreme Court also cited U.S. Security Ins. Co. v. Silva, 693 So.2d 593 (Fla. 3rd DCA 1997) and recognized the Silva court had correctly noted that there was a potential for fraud. The complete statement from that case on the matter is,
“it is apodictic that the potential for fraud at the confluence of the medical, legal and insurance industries is virtually unlimited. Our holding today clarifies a statutory provision we are convinced was intended to protect insurers from those who would defraud them.”
This reference to fraud by personal injury claimants is particularly noteworthy since after referring to the aforementioned Silva comment the Florida Supreme Court goes on in Cimino to say,
“However, by allowing the examination to be observed by a third party or videotaped, the potential for harm to either party is reduced, not increased.” (emphasis added)
This language from the case supports the conclusion that the Supreme Court recognized the need for both sides to have a reliable record made of the exam. It reinforces the inherent power vested in the trial judge to control this adversary proceeding in a manner contemplated to avoid needless disputes between the parties over what transpired. The reference to the benefit to both sides is also in conformity with Florida’s first case addressing rule 1.360, Gibson. As previously noted herein that decision pointed out their belief that both the examiner and the patient would benefit from an objective record.
Finally, with regard to the Supreme Court opinion in Cimino it should be noted that although the issues presented involved the requested use of a video camera to record the exam the decision focuses on the presence of counsel. There is the above-mentioried brief comment which included a reference to videotaping the exam as being beneficial to the parties, however, there is no citation to or discussion of the Latherow case, or the Lunceford opinion.
With the historical background of “the Rule” in mind, the court now examines the issues presented in the case at bar. The Plaintiff had previously objected to the Defense requested 1.360 rule exam and sought a protective order from the court. The Plaintiff’s written objection sought:
“. . .the opportunity to have a videographer or court reporter present to record the same and a designated representative of Plaintiff’s attorney’s office to attend and, without interference, observe such examination.”
After a hearing this court entered an order which included authorization of a videographer to be present to record the examination. Plaintiff’s counsel now asserts the tape is work product, and that it is like a surveillance video taken of a personal injury claimant by insurance investigators. He suggests this recording of the examination can be held by the Plaintiff until such time as he determines it will be used at trial. Then it would be revealed in conformity with the discovery rules and the court’s expected pretrial order. Plaintiff’s counsel also asserts the tape should not be released because of general privacy rights of his client, the examinee.
The Plaintiff’s use of the privacy of the examinee as a ground to prevent the production of this tape is not persuasive. The courts in Cimino, Bartell, Gibson and High have recognized that privacy of the exaininee is involved in these decisions regarding the presence of third parties and the creation of a record of the proceedings. However, all of these cases indicate that because the examinee is the one requesting the intrusion into their privacy it should therefore be permitted. There are no cases which suggest that after obtaining such relief from the court the examinee can then preclude revelation on the basis of privacy.
Because of these privacy concerns, it may be that examinees can prevent or limit defendants initial request to have their counsel, a court reporter or videographer present at these examinations. There do not appear to be any cases on this issue. The court mentions this fact in conjunction with the discussion regarding disclosure of work product later in this order.
Plaintiff’s counsel’s attempt to liken the video of this examination to a surveillance video also falls short. This was not something produced as the result of clandestine unilateral investigation by a party independently preparing for litigation. It was created pursuant to court order, with knowledge of both parties, at an examination which has clearly been determined by the appellate decisions to be an adversary proceeding. This court granted the right to videotape the proceedings in conformity with the cases which considered the procedure an appropriate method to create a complete and accurate record of the exam. The purpose was to avoid additional disputes not create them. The very first Florida case on the subject as well as the only Florida Supreme Court decision regarding the issue both point out the making of objective recording of the proceedings is for the benefit of both parties.
It is hard to conceive how a recording which the courts have considered to be superior to a court reporter for the creation of an accurate record of this court mandated proceeding could be considered work product. Here Plaintiff’s counsel does, however, argue this videotape is his work product created for his trial preparation.
Plaintiff’s written submissions cite Dodson v. Persell, 390 So.2d 704 (Fla. 1980) for the proposition that one party is not entitled to prepare his case through the investigative work of his adversary. This argument is particularly ironic under the circumstances presented here. The Defendants, in an effort to prepare their case have attempted to investigate the Plaintiff’s injury claim through the very limited means available under Rule 1.360. There exists no other method by which a defense expert can engage in the actual physician-patient interaction which might be essential for a credible opinion regarding the patients condition. Then, the Plaintiff (using the court mandated provisions designed to avoid improper questions and create an unbiased record of the exam) invades the Defense investigation and asserts the videographer was there to assist Plaintiff in the preparation of his case.
Even if the court were to consider the tape in question to be work product the exceptional circumstances presented in this case would warrant its production. The video can perhaps be likened to photographs taken in anticipation of litigation. Our rules of civil procedure and case law provide for the revelation of such items where appropriate. See Florida Power Corporation v. Dunn, 850 So.2d 655 (Fla. 2nd DCA 2003) and Wackenhut Corp. v. Crant-Heisy Enterprises, Inc., 451 So.2d 900 (Fla. 2nd DCA 1984).
There is no suggestion that the tape contains the mental impressions, conclusions, opinions, or legal theories of counsel. It is not claimed that a review of its contents would disclose any strategic, confidential or privileged information.
There is no indication that any prejudice would enure to the Plaintiff if the tape was made available to opposing counsel. On the contrary, there may indeed be prejudice to the Defense. The court reasonably expected that granting the Plaintiff video access would provide the objective record the cases suggest should benefit both parties. In instances where a court reporter is used both sides always have the ability to order a complete transcript and this court anticipated the same opportunity would be present with videotape. Similarly, it was reasonable for the Defense to expect the record would be available.
Here the unique character of these videotapes is beyond dispute. The Fifth District in Lunceford found them to be so critical to pre-trial preparation that even with a transcript of the exam the lack of a video constituted fundamental error. The precise questions, answers, movements and responses of the examiner and the examinee at the time cannot be obtained by the Defendant in any other fashion.
Therefore, the court grants the Defendant’s Motion to Compel Production of the videotape of the February 6, 2003 compulsory physical examination of the Plaintiff by Dr. Bernard Fishalow, M.D.
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