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Brian P. Rush v. Louis E. Burdge, et al., Case No. 2D13-1175 (2nd DCA)

In Rush, the plaintiff’s counsel in the underlying suit appealed an order imposing attorneys’ fees and costs as a sanction for the attorney’s allegedly unprofessional conduct at a compulsory medical examination of his client. The Second DCA reversed the sanction.

In the underlying suit, the plaintiff was scheduled for a compulsory medical exam. The plaintiff’s attorney served objections to the exam three days before the exam was to take place. The objections were technically timely, but the Second DCA considered them last minute. Among other things, the plaintiff objected to the completion of any lengthy forms. At the exam, the examining doctor presented the plaintiff with a seventeen page pre-exam questionnaire. The doctor attempted to proceed with the exam given that there was no court order on the plaintiff’s objections. The plaintiff’s attorney later arrived at the doctor’s office, and apparently a heated exchange occurred. The exam went forward after the doctor allowed the plaintiff to throw out the questionnaire.

The trial court later ruled that the plaintiff was required to complete the questionnaire, but may do so with the assistance of counsel. The trial court subsequently ruled that the plaintiff’s attorney “created an atmosphere of anxiety and hostility which disrupted the examination,” and as such, imposed a sanction of $8,000 in attorneys’ fees and costs.

The Second DCA noted that the plaintiff had moved for sanctions pursuant to Rule 1.380 and the trial court’s inherent powers. The Second DCA summarily found sanctions pursuant to Rule 1.380 to be inappropriate given the circumstances.

Addressing the trial court’s inherent power, the Second DCA noted that a trial court has the inherent authority to impose a sanction against an attorney for bad faith conduct. Under Moakley v. Smallwood, the trial court must strike a balance between condemning unprofessional or unethical litigation tactics undertaken solely for bad faith purposes against the needs of counsel to provide necessary advocacy in pursuit of their client’s interests. According, a trial court imposing a sanction pursuant to its inherent authority must make an express finding of bad faith. Given that the trial court in this case found that the attorney’s conduct was not committed maliciously or with malevolent intent, the trial court apparently concluded that the attorney’s conduct lacked bad faith. Therefore, sanctions were inappropriate pursuant to the trial court’s inherent authority. As such, the Second DCA reversed the trial court’s order imposing sanctions.

Notably, in a concurring opinion, Judge Villanti noted that while orders setting forth the parameters of CMEs are not required, there are sufficient numbers of disputes surrounding compulsory medical examinations such that Hillsborough County has a standard Uniform Order on compulsory medical examinations.

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