14 Fla. L. Weekly Supp. 250a
Insurance — Personal injury protection — Discovery — Trial court did not abuse discretion in granting plaintiff’s motion to compel physician who conducted independent medical examination to comply with subpoena duces tecum where information sought in subpoena was required by statute to be maintained by physician, and defendant insurer did not object to production of material requested — Because physician’s motion for protective order did not qualify as an objection, plaintiff was proper in seeking order to compel — Physician did not establish the sort of irreparable harm necessary for granting of writ of certiorari
MIMI SUHAR, D.C., Petitioner, vs. GARY WEISS, D.C. DABFE a/a/o Nancy Castillo and NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Respondents. Circuit Court,18th Judicial Circuit (Appellate) in and for Seminole County. Case No. 06-26-AP. October 24, 2006. Counsel: Beth A. Moriarty, Maitland. Roy J. Smith, IV, Maitland. R. Scott Simmons, Lake Mary.
ORDER DENYING PETITION FOR CERTIORARI
(DEBRA S. NELSON, J.) Petitioner Mimi Suhar, D.C. (“Suhar”) seeks review of a lower court Order Regarding Plaintiff’s [Gary Weiss, D.C., DABFE, hereinafter “Weiss”] Motion to Compel Compliance with Subpoena Duces Tecum or in the Alternative, Motion to Strike Expert. Suhar was given 30 days to provide the information sought in the subpoena.
Suhar was retained to perform an independent medical examination on Weiss’ Assignor, Nancy Castillo, on behalf of the Defendant in the underlying action, Nationwide Mutual Fire Insurance Company. Suhar is not a party to the underlying action, but is a potential witness. On February 4, 2005, Suhar was served with a Subpoena Duces Tecum Without Deposition, pursuant to Rule 1.351, Florida Rules of Civil Procedure.
On March 1, 2005, Suhar filed objections to such production. On July 8, 2005, Weiss filed a Motion to Compel Compliance with Subpoena Duces Tecum or in the Alternative, Motion to Strike Expert. On August 1, 2005, the trial court heard Weiss’ motion, with no notice having been provided to counsel for Suhar.
Upon Suhar’s Motion for Rehearing, Weiss’ motion was reheard on January 11, 2006. On March 2, 2006, the Court entered the above-referenced Order, finding that the information requested in the subpoena was not objected to by Defendant Nationwide Mutual Fire Insurance Company (“Nationwide”).
“Generally, a trial court possesses broad discretion in granting or refusing discovery motions and in protecting the parties . . . Unless an abuse of the trial court’s wide discretion in its treatment of requests for discovery is shown, the court’s ruling will not be disturbed.” American Southern Co. v. Tinter, Inc., 585So.2d 891, 892 (Fla. 3d DCA 1990), citing Rosaler v. Rosaler, 442 So.2d 1018 (Fla. 3d DCA 1984). “Certiorari will lie only in limited circumstances where the non-final order departs from the essential requirements of the law . . .” Venus Laboratories, Inc. v. Katz, 573 So.2d 993, 994 (Fla. 3d DCA 1991).
Rule 1.351, Fla.R.Civ.Pr. provides, “[t]here shall be no hearing on any objection to production under this rule. Relief may be obtained pursuant to rule 1.310.” The Committee Note to Rule 1.351 states: “It authorizes objections by any other party as well as the custodian of the records. If any person objects, recourse must be had to Rule 1.310.”
On March 1, 2005, Suhar filed a Motion for Protective Order Regarding Subpoena Duces Tecum Pursuant to F.R.C.P. 1.351 Served on Friday, February 4, 2005. In this Motion, Suhar states that she is “unable to produce these materials without undue burden and expense,” and requests that the Court “enter a Protective Order excusing her from producing [this information].” Weiss counters that this Motion does not qualify as an “objection,” and therefore does not invoke recourse through rule 1.310.
This argument is supported by the decision in Jones v. Jones, 463 So.2d 564 (Fla. DCA 1985). In this case, the language of Suhar’s Motion for Protective Order is most accurately seeking relief under Rule 1.280(c). As in Jones, the record here does not reveal Suhar’s prior compliance with the dictates of rule 1.351(b). Therefore, Suhar has not objected to the information sought by the subpoena, but has instead refused to comply with its terms. As such, Weiss was proper in seeking an Order to Compel, rather than being restricted to relief in accordance with rule 1.310.
The basis for Weiss’ Motion to Compel was twofold: (1) Nationwide did not object to the information requested; and (2) Suhar is required under section 627.736(7)(a), Florida Statutes, to maintain the information sought in the subpoena.
The Order of March 2, 2006 relies on section 627.736(7)(a) as the basis to compel production. The trial court indicated that “the information sought by Plaintiff [Weiss] in the subpoena must be maintained by Dr. Suhar in order to provide the opinion upon which Defendant [Nationwide] relies for its decision not to pay for the services provided by Dr. Weiss.”
In Russell v. Stardust Cruisers, Inc., 690 So.2d 743 (Fla. 5th DCA 1997), the respondent did not seek to depose the custodians of records they sought after it received petitioner’s objection. The Court held that the trial court erred when it did not require the deposition of the records custodians. The Court denied certiorari, however, because there was no showing of irreparable harm. “Writs of certiorari will not issue in discovery matters where there is no showing of irreparable harm. Martin-Johnson Inc. v. Savage, 509 So.2d 1097 (Fla. 1987). Here, petitioner cannot show irreparable harm because, even if deposed, the psychiatrist and psychologist, whose interests were represented at the hearing, would have invoked the psychotherapist-patient privilege.” Russell at744.
In this case, even had recourse been provided by deposition, pursuant to Rule 1.310, Suhar would have invoked the doctor-patient privilege. Suhar’s refusal to provide the requested information would only result in her being prohibited from testifying in the underlying matter. This is insufficient to establish the sort of irreparable harm necessary to grant the writ of certiorari.
Russell is distinguishable from Jones because in Russell, the petitioner actually objected. The instant case is more correctly on point with Jones, as Suhar’s Motion for Protective Order is not considered an “objection.” Therefore, the trial court did not abuse its discretion in compelling production of the information sought in the subpoena duces tecum.
ACCORDINGLY, the decision of the trial court to compel compliance with the subpoena duces tecum is hereby AFFIRMED, and the Petition for Writ of Certiorari is hereby DENIED.
