Graham v. Dacheikh

Graham v. Dacheikh

Opinion

 [*932]  ALTENBERND, Judge.

Brittany Graham and Yolanda Graham, defendants in an automobile negligence action, seek a petition for writ of certiorari to quash a discovery order. The order compels Dr. Stephen Sergay, a neurologist who performed a medical examination of the plaintiff, Kimberly V. Brown Dacheikh, pursuant to Florida Rule of Civil Procedure 1.360, to produce all "reports of examiner" that he has prepared pursuant to that rule of procedure in any other lawsuit between 2004 and 2006. Although Dr. Sergay has been authorized to remove names and identifying information from the reports that he prepared regarding other people, the reports, otherwise in  [*933]  their entirety, are to be provided to the attorneys without prior review in camera by the trial court and without any provisions for confidentiality. It appears that these medical reports of nonparties are desired not to discover  [**2] evidence relevant to prove the plaintiffs' case, but merely to give their attorneys a basis to engage in impeachment of Dr. Sergay. We conclude that when the circuit court relied upon the holding in Amente v. Newman, 653 So. 2d 1030 (Fla. 1995), which is a distinguishable case, and refused to obey the express language of section 456.057(7), Florida Statutes (2006), it applied the wrong law. This order departs from the essential requirements of the law and causes irreparable injury to the privacy rights of nonparties who have been given no notice and no opportunity to be heard in this proceeding. Accordingly, we grant the petition and quash the order on review.

The underlying lawsuit in this case is an automobile negligence action filed by Kimberly and Ali Dacheikh against Brittany and Yolanda Graham. The record provided to this court in this certiorari proceeding does not detail the nature of the automobile accident or the extent of Ms. Dacheikh's injuries. In the course of discovery, however, Dr. Sergay performed a medical examination of Mrs. Dacheikh pursuant to rule 1.360. ¹ The Dacheikhs obtained the examiner's report prepared by Dr. Sergay pursuant to rule 1.360(b), but they also  [**3] sought extensive additional discovery directed to Dr. Sergay. The Dacheikhs served the Grahams with a "notice of taking records pick-up deposition duces tecum" which indicated they were issuing a subpoena duces tecum to Dr. Sergay that required him to produce (1) "[a] printout of any and all depositions done by Dr. Sergay for the calendar years 2004, 2005, and 2006 to the extent that such information is retrievable and/or available"; (2) "[a] list of cases wherein Dr. Sergay testified in trial (in person) for the calendar years 2004, 2005, and 2006 and the person or entity who requested his presence at trial to the extent such information is available or such a list is maintained"; and (3) "[a] copy of any written report Dr. Sergay wrote as a result of a Compulsory Medical Examination pursuant to F.R.C.P. 1.360 for the calendar years 2004, 2005, and 2006." As to request three, the Dacheikhs provided that Dr. Sergay could redact identifying information such as "the name of the patient, date of birth and/or social security number."

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