DiMeglio v. Briggs-Mugrauer
708 So. 2d 637, 1998 WL 144924 (1998)
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Rule of Law:
A physician who performs a pre-suit independent medical examination (IME) of an injured party on behalf of an adverse insurer, even if done in anticipation of litigation, is discoverable by the examined party under Florida Rule of Civil Procedure 1.360(b) and (c) and may be deposed for trial use, negating a claim of work-product privilege.
Facts:
- Frank Dimeglio was driving his vehicle when it was struck by an uninsured vehicle owned by Donna Marie Briggs-Mugrauer and driven by a third party.
- Dimeglio had an insurance policy with State Farm Mutual Automobile Insurance Company, which included uninsured motorist benefits and contractually required him to consent to examinations by State Farm's chosen physicians if he filed a claim.
- Prior to the initiation of a lawsuit, a claims representative for State Farm scheduled an independent medical examination for Dimeglio with Dr. Paul Dernbach to verify the extent of Dimeglio's injuries.
- After the examination, Dr. Dernbach, in his report furnished to Dimeglio, concluded that Dimeglio had suffered from a cervical and lumbar myofascial syndrome, sustained a partial disability rating of no more than three percent, and would not be able to work as a drywall installer to the degree he was able prior to the accident.
Procedural Posture:
- Approximately one year after Dr. Dernbach issued his report, Frank Dimeglio filed a lawsuit against State Farm Mutual Automobile Insurance Company, seeking payment of uninsured motorist benefits, in the trial court.
- Dimeglio then scheduled the video deposition of Dr. Dernbach for purposes of discovery and use at trial.
- State Farm filed a motion for a protective order with the trial court, claiming work-product privilege and stating it would not call Dr. Dernbach as an expert witness, seeking to prohibit his deposition.
- The trial court granted State Farm's motion for a protective order.
- Frank Dimeglio, as Petitioner, filed a petition for a writ of certiorari with the District Court of Appeal of Florida, Second District, seeking to quash the trial court's protective order.
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Issue:
Does a trial court depart from the essential requirements of law by issuing a protective order that prohibits a plaintiff from deposing, for discovery and trial use, a medical expert who performed a pre-suit independent medical examination (IME) on the plaintiff on behalf of the defendant insurer, when the insurer does not intend to call the expert at trial?
Opinions:
Majority - Per Curiam
Yes, a trial court departs from the essential requirements of law by prohibiting a plaintiff from deposing, for discovery and trial use, a medical expert who performed a pre-suit independent medical examination on the plaintiff on behalf of the defendant insurer, even if the insurer does not intend to call the expert at trial. The court first agreed with State Farm that the examination was performed in anticipation of litigation, reasoning, based on `Fireman's Fund Insurance Company v. Signorelli`, that once Dimeglio filed an uninsured motorist claim, State Farm could reasonably foresee that litigation would follow. However, the court held that Florida Rule of Civil Procedure 1.360, which governs physical and mental examinations, applies to this type of situation, including pre-suit examinations, and provides an exception to general work-product protection under Rule 1.280(b)(4)(B). The court found that Dimeglio's physical condition was 'in controversy' and that the examination was 'made by agreement of the parties' under Rule 1.360(a)(1) and (b)(3). Although Rule 1.360(b) does not explicitly authorize depositions, the court noted that Rule 1.360(b)(2) strongly implies the right to depose the examiner, and Rule 1.360(c) explicitly states that the examiner 'may be called by any party to the action.' The court further emphasized that physicians performing physical examinations are unique, citing Section 455.241(1), Florida Statutes, which grants examined persons the right to copies of reports, supporting the conclusion that an insurer cannot claim work-product privilege for such an examination of the plaintiff. Therefore, preventing Dimeglio from deposing Dr. Dernbach for trial use constituted a material injury not remediable on appeal, warranting certiorari relief.
Analysis:
This case significantly clarifies the discoverability of pre-suit independent medical examinations (IMEs) in Florida, particularly when the examining physician is engaged by an adverse insurer and not intended to be a trial witness. The ruling emphasizes that the specific provisions of Florida Rule of Civil Procedure 1.360, governing physical examinations, take precedence over general work-product protections, even if the examination was conducted in anticipation of litigation. This ensures that plaintiffs have access to potentially crucial medical opinions derived from their own physical examinations, preventing insurers from selectively withholding unfavorable expert reports. The decision helps level the playing field in discovery, reinforcing the principle that medical findings directly related to a party's condition in controversy should be fully accessible.
