HENRY COLLINS AND S'ADE SIMMONS, MINOR CHILDREN, BY AND THROUGH THEIR NATURAL GUARDIAN AND NEXT FRIEND, JUANITA BURTON, AND JUANITA BURTON, INDIVIDUALLY, PETITIONERS,
v.
KARL RONNIE SKINNER AND CONNIE SKINNER, RESPONDENTS
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Petitioners sought review of a trial court order prohibiting court reporters from attending their compulsory physical examinations in a personal injury case. The appellate court held that absent valid reasons, examinees have a right to have a court reporter present at such examinations to preserve the record of communications with the physician.
Examinees have the right to have a court reporter present at compulsory physical examinations unless the opposing party meets its burden of proving a valid reason for denial. The potential interference of a court reporter and its inability to transcribe tone of voice or facial expressions are not valid reasons for denying the examinee's request.
[1] A party seeking to deny the presence of a third party at a compulsory physical examination bears the burden of proving why the examinee's entitlement to such presence sho…
[2] The potential for a court reporter to interfere with a compulsory physical examination is not a valid reason to deny the examinee's request for the reporter's presence.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The burden of proof to show why the examinee's entitlement to the pres[ence] of a third party should be denied, however, lies with the party opposing the third party's attendance.”
Establishes the burden of proof framework: the opposing party must justify denial of the court reporter's presence
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Join FLexlaw to unlock all legal intelligenceIn a personal injury case, defendants requested physical examinations of plaintiffs pursuant to Florida Rule of Civil Procedure 1.360. Plaintiffs obje…
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PER CURIAM.
All three petitioners seek review of the circuit court’s order prohibiting the presence of a court reporter at each of their compulsory physical examinations. We grant certiorari.
In this personal injury case, respondents, the defendants, requested physical examinations of the petitioners, the plaintiffs, in accordance with Florida Rule of Civil Procedure 1.360. The petitioners timely served a written response making several objections and requesting the presence of a court reporter to preserve the communications between the petitioners and the physician during the course of the examinations. The respondents objected to the request because their selected physician refused to conduct the examinations in the presence of a court reporter and because the court reporter would interfere with the examinations. The trial court ordered the examinations take place without a court reporter being present, apparently for the reason that the court reporter could not transcribe the demeanor of the examinees or the physician.
Rule 1.360(a)(3) permits the trial court to establish protective rules for compulsory examinations at the request of either party. The burden of proof to show why the examinee's entitlement to the pres ence of a third party should be denied, however, lies with the party opposing the third party’s attendance. Stakley v. Allstate Insurance Co., 547 So. 2d 275 (Fla. 2d DCA 1989); Bartell v. McCarrick, 498 So. 2d 1378 (Fla. 4th DCA 1986). Absent a valid reason for denial, the examinee’s request should be upheld. Stakley; Gibson v. Gibson, 456 So. 2d 1320 (Fla. 4th DCA 1984).
The court reporter’s potential interference with the examinations is not a valid reason. As the court stated in Gibson, “[t]here is no reason why the reporter, like a mechanical device used for the same purpose, should interfere with the process.” 456 So. 2d at 1321. Although the trial court was correct in observing that the court reporter cannot transcribe the examinee’s or the physician’s tone of voice or facial expressions, this inability is not a valid reason for denying the examinee’s request for a court reporter’s presence.
The petition for writ of certiorari is granted; that portion of the order prohibiting the court reporter’s presence is quashed. We remand for the trial court to reconsider whether other physicians are available who will examine the petitioners with a court reporter present.
RYDER, A.C.J., and DANAHY and PATTERSON, JJ., concur.
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U.S. Sec. Ins. Co. v. Jeanni M. Cimino, 754 So. 2d 697 (Fla. 2000)…v. Reilly, 695 So. 2d 832 (Fla. 2d DCA 1997), that the [*699] person being examined could have a vid-eographer present during an examination pursuant to rule 1.360. See also Wilkins v. Palumbo, 617 So. 2d 850 (Fla. 2d DCA 1993); Collins v. Skinner, 576 So. 2d 1377 (Fla. 2d DCA 1991)(both holding a plaintiff in a personal injury suit is entitled to have a court reporter present during a compulsory medical examination). The presence of a third party has also been litigated in the workers’ compensation context.…
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Broyles v. Reilly, 695 So. 2d 832 (Fla. 2d DCA 1997)…. “The burden of proof to show why the examinee’s entitlement to the presence of a third party [at a compulsory examination pursuant to rule 1.360] should be denied ... lies with the party opposing the third party’s attendance.” Collins v. Skinner, 576 So. 2d 1377, 1378 (Fla. 2d DCA 1991). See also Wilkins v. Palumbo, 617 So. 2d 850 (Fla. 2d DCA 1993); Stakley v. Allstate Ins. Co., 547 So. 2d 275 (Fla. 2d DCA 1989). This court has previously held that, in the absence of a valid reason to prohibit the presence…
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Toucet v. BIG Bend Moving & Storage, Inc., 581 So. 2d 952 (Fla. 1st DCA 1991)…er of discretion which has not been abused in this instance. We conclude that the trial court departed from the essential requirements of law in precluding petitioner’s attorney from being present at the physical examination. In Collins v. Skinner, 576 So. 2d 1377, 1378 (Fla. 2d DCA 1991), the second district stated the applicable rule as follows: Rule 1.360(a)(3) permits the trial court to establish protective rules for compulsory examinations at the request of either party. The burden of proof to show why…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bartell v. McCARRICK, 498 So. 2d 1378 (Fla. 4th DCA 1986)
- Gibson v. Gibson, 456 So. 2d 1320 (Fla. 4th DCA 1984)
- Stakley v. Allstate Ins. Co., 547 So. 2d 275 (Fla. 2d DCA 1989)