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Grady Gray v. Gwen E. Richbell, Case No. 4D14-1920 (4th DCA)

In Gray, the Fourth DCA reversed a trial court order compelling a defendant to appear for a compulsory neurological medical examination. In the underlying suit, the plaintiffs’ daughter was killed in an automobile accident when her car veered into oncoming traffic after behind struck from behind, and collided head on with a truck being driven by the defendant. The plaintiffs argued that the defendant negligently failed to avoid the accident. The plaintiffs argued that the defendant’s age and physical condition contributed to the accident, and the plaintiffs’ expert opined that the defendant was suffering dementia at the time of the accident. Days before trial, the trial court ordered the defendant to appear for a CME, over the defendant’s objection that his medical condition had not been placed into controversy and that the plaintiffs had failed to show good cause for the examination.

The Fourth DCA noted that a party may request that another party submit to an examination by a qualified expert when the condition that is the subject of the requested examination is in controversy. When the party subject to the examination has not voluntarily placed his condition into controversy, “great care should be taken to insure that good cause exists, for such examinations invade the privacy rights of the person to be examined.” The Fourth DCA further noted that the following two requirements must be clearly manifested for the Rule 1.360 examination requested in this case: (1) that the defendant’s mental condition be in controversy, i.e., directly involved in some material element of the cause of action or a defense; and (2) that good cause be shown, i.e., that the mental state of the defendant, even though in controversy, cannot adequately be evidenced without the assistance of expert medical testimony.

The Second DCA ruled in this case that it is the defendant’s conduct that is at issue, not his mental or physical health. “If he was not negligent, then his physical health is immaterial; and if he was negligent, the same holds true.”

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