       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

   STEPHEN A. BODZIN, an individual, and BODZIN & GOLUB, P.C.,
                           Petitioners,

                                     v.

   DIANA LEVITER, as Personal Representative of the Estate of SOL
 LEVITER, and next of kin of SOL LEVITER, and DIANA LEVITER, an
                              individual,
                             Respondent.

                              No. 4D15-2122

                           [September 9, 2015]

   Petition for writ of certiorari to the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Cynthia Imperato, Judge; L.T. Case No.
10-28662 21.

   Jerome R. Silverberg and Sorraya M. Solages-Jones of Lewis Brisbois
Bisgaard & Smith LLP, Fort Lauderdale, for petitioner.

   Robert A. Stok and Brian H. McGuire of Stok Folk + Kon, Aventura, for
respondent.

WARNER, J.

   We grant the petition for certiorari. The trial court departed from the
essential requirements of law in requiring the non-resident defendant, who
has not sought affirmative relief in the Florida courts, to appear for an
independent medical examination in Florida. See Youngblood v. Michaud,
593 So. 2d 568 (Fla. 4th DCA 1992) (independent medical examination of
defendant should occur only in county of defendant’s residence).

   Respondent’s reliance on McKenney v. Airport Rent-A-Car, Inc., 686 So.
2d 771 (Fla. 4th DCA 1997), is misplaced. There, the trial court required
a plaintiff to appear for an independent medical examination in the county
where the plaintiff filed suit, and our court concluded that the trial court
did not abuse its discretion. In those circumstances, we concluded that
Youngblood did not constitute a “hard and fast rule” requiring an IME to
be performed in the county of the plaintiff’s residence. Where a plaintiff is
seeking affirmative relief based upon his/her medical condition, an IME at
a location different than the plaintiff’s place of residence may be required,
because experts necessary to review the plaintiff’s condition may not be
available there. Id. Here, the gravamen of the cause of action in this
case─investment fraud─has nothing to do with defendant’s condition.
Thus, Youngblood, and not McKenney, is on point.

   Respondent’s purpose in seeking an examination of the
petitioner/defendant is to determine his capacity to testify, after his
counsel alleged that he was incapacitated by Alzheimer’s disease.
Respondent claims that petitioner has the capacity to testify, and in some
statements under oath, petitioner agrees. Petitioner has given multiple
depositions in this case without having raised incapacity to testify at those
depositions. Moreover, respondent already has received petitioner’s
medical records, retained an expert to review those records and form an
opinion as to petitioner’s capacity, and found substantial other evidence
to support her contention that petitioner is not incapacitated. Even
without an IME, if respondent does not wish to have one performed in
petitioner’s home state, there is substantial evidence from which a trial
court can determine whether petitioner is incapacitated from testifying.

    There is no rule or statute which requires the defendant to testify at the
trial. See Graber v. Gassman, 321 So. 2d 82, 83 (Fla. 3d DCA 1975).
Obviously, petitioner does not intend to testify at trial, and there is nothing
in this record to show that respondent has subpoenaed him and intends
to call him as a witness. Although petitioner does not object to the
examination, he objects to an examination outside of his state of residence.
If respondent still wishes to obtain an examination, she must schedule one
there.

LEVINE, J., concurs.
CONNER, J., dissents with opinion.

CONNER, J., dissenting.

   The majority agrees with petitioner that Youngblood v. Michaud, 593
So. 2d 568 (Fla. 4th DCA 1992), controls the disposition of petition. I
disagree and respectfully dissent for the reasons discussed below.

   First, Youngblood consists of one relatively short substantive
paragraph, with very little discussion of the facts and legal analysis. As
pointed out in our subsequent opinion in McKenney v. Airport Rent-A-Car,
686 So 2d 771, 772 (Fla. 4th DCA), Youngblood seemingly premised its
reversal by comparing a requirement that a defendant travel outside the
county of his residence for a medical examination to a requirement that a

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defendant travel outside the county of his residence for a deposition.
Youngblood, 593 So. 2d at 569. In McKenney, we clearly rejected the
argument “that Youngblood established a hard and fast rule regarding the
location of an independent medical examination.” McKenney, 686 So. 2d
at 772. We also noted that the Florida rule on compulsory examinations
is patterned after the federal rule, and the federal rule has been interpreted
to give the court the discretion to determine the location of the examination
to facilitate the presentation of evidence. Id. We concluded certiorari relief
was inappropriate because the trial court did not abuse its discretion in
requiring the plaintiff to travel from his home county for a medical
examination in the county where the suit was pending. Id. at 773.

    The majority opinion in this case holds that a trial court departs from
the essential requirements of law when it orders a non-resident defendant
to travel to Florida for a medical examination. The premise of the position
is that a defendant should not be required to travel to Florida unless the
defendant seeks affirmative relief. In support of the premise, the majority
cites to Youngblood. The majority then asserts that McKenney stands for
the proposition that a plaintiff can be required to travel beyond the county
of residence because the plaintiff is seeking affirmative relief. Next, the
majority contends “the gravamen of the cause of action in this case —
investment fraud — has nothing to do with the defendant’s [petitioner’s]
condition.” For those reasons, the majority concludes Youngblood is on
point and McKenney is not.

    I respectfully disagree with the majority. Florida Rule of Civil Procedure
1.360 does not limit its application to a party seeking affirmative relief.
Instead, the rule allows for the examination of a party “when the condition
that is the subject of the requested examination is in controversy.” Fla. R.
Civ. Proc. 1.360(a)(1) (emphasis added).1 I disagree that the rule works
differently depending on whether it is a plaintiff or defendant being
examined. I have found no case law in Florida that holds the rule works
differently, depending on which party is being examined.2



1 The United States Supreme Court, in construing Rule 35, upon which rule
1.360 was patterned, has stated “Rule 35 on its face applies to all ‘parties,’ which
under any normal reading would include a defendant.” Schlagenhauf v. Holder,
379 U.S. 104, 112 (1964).
2 The Second District seemingly agrees the rule does not work differently

depending on which party is being examined. In State Farm Mutual Automobile
Insurance Co. v. Shepard, 644 So. 2d 111 (Fla. 2d DCA 1994), the court stated
the trial court did not err in requiring the plaintiff to be examined in the county
of her residence, citing Youngblood.

                                         3
    My research has revealed there are very few cases in Florida, or
nationally, that address the issue of the trial court’s discretion in
determining the place of a medical examination of a defendant pursuant
to statutes or procedural rules in civil cases when it is the defendant
putting his or her medical status in controversy.3 In fact, Youngblood is
the only case in Florida addressing the propriety of the place for a medical
examination of a defendant in a civil proceeding. The lack of civil cases
addressing the medical examination of a defendant is not surprising, since
it is not typical for a defendant to raise a defense which makes an issue of
his or her physical or mental status. It is even less typical for a defendant
to assert his mental status as a defensive move to block or erode the
evidentiary value of his prior testimony, which is the situation in this case.
However, it is clear that it is the defendant who has put his mental status
at issue in this case. It is debatable, given the procedural maneuverings
by the defense in this case, whether the defendant is using his mental
status as a sword, shield, or both.4

    Of all the districts, the Fifth District has issued the most opinions
regarding a trial court’s discretion in determining the place for a medical
examination. All of the cases address a medical examination of the
plaintiff. Although some of the caselaw in the Fifth District has mentioned
that the plaintiff has sought affirmative relief by bringing the action, which
is pertinent to the issue of the place for depositions, the Fifth District has
squarely said “[d]epositions and [medical examinations] are simply not the
same” and “[w]hat the courts have held to be a reasonable place in the
context of medical exams is not necessarily the same as for depositions.”
Tsutras v. Duhe, 685 So. 2d 979, 980-81 (Fla. 5th DCA 1997). In Tsutras,
the court addressed the issue of the proper place for a medical examination
when the plaintiff resides outside of Florida. Id. at 980. The court said,
generally speaking:

      If the defendant desires a medical examination it must be
      done in the resident county or state of the plaintiff, or any


3 In cases in which the plaintiff puts the defendant’s medical condition in
controversy, one can surmise that there is an assumption the examination must
be conducted in the county where the defendant resides, and the parties agree to
the place of the examination without a fight and thus no appellate issue is
created.
4 Early on in this case, an order was entered pursuant to Florida Rule of Judicial

Administration 2.545(c) to give this case priority status in the trial court due to
the advanced ages of both plaintiffs (respondents). One of the elderly plaintiffs
has since died. At the time suit was filed, both plaintiffs were older than the
petitioner.

                                        4
      other place where she may be found and by a doctor of
      defendant’s choice.

Id. at 981. However, the court went on to observe that “[o]bviously, the
availability of the appropriate medical speciality will influence the extent
to which the nonresident plaintiff may be accommodated.” Id. The court
then noted a Tennessee opinion which “found that it was not an abuse of
discretion for the trial court to require a [medical examination] of a
nonresident plaintiff if the exam was to be performed ‘while she was to be
in Memphis for her discovery deposition.’” Id. (citing Kibbler v. Richards
Med. Co., 1992 WL 233027 (Tenn. App. Sept. 23, 1992)).5

   More recently, the Fifth District has upheld a trial court order requiring
a nonresident plaintiff to attend a medical examination in Florida, at the
plaintiff’s expense, because the plaintiff had not been “forthcoming” in
answering questions in his first deposition, taken in Florida, thus
prompting the need for a second deposition. Goeddel v. Davis, 993 So. 2d
99, 100 (Fla. 5th DCA 2008). The Fifth District found no error in requiring
the plaintiff to attend a medical examination in Florida while here for the
second deposition, again citing Kibbler. Id.

   In this case, there is no transcript of the pre-trial calendar call hearing
which resulted in the order under review.6 The respondents, two days
prior to the calendar call, filed a motion to compel the petitioner’s
appearance at the hearing, scheduled by the petitioner, to determine his
competency to testify. The trial was scheduled to occur approximately two
months after the calendar call. In addition to seeking an order compelling
petitioner’s attendance at the hearing, respondents sought an order
compelling a medical examination of petitioner while in Florida to attend
the hearing on his competency to testify. Although petitioner contends in
his petition before this court that the trial court ordered him to attend the
hearing to determine his competence to testify, the written order under
review does not so state.7 However, if the trial court was satisfied at the

5 The dissent in Tsutras would have granted more discretion to the trial court
than the majority in determining the place for a medical examination. 685 So.
2d at 982 (Goshorn, J., dissenting).
6 On our order to supplement the record on appeal, the parties have advised there

was no court reporter at the calendar call.
7 The order on review simply sets the date and time of the hearing to determine

the petitioner’s competency to testify. If the trial court orally announced the
petitioner must attend the hearing, it was not reduced to writing, and therefore
not enforceable. Absent a court order for the petitioner to appear, the only other
vehicle for the respondent to compel the petitioner’s attendance at an evidentiary
hearing is service of a subpoena.

                                        5
calendar call that the petitioner would be attending the evidentiary hearing
on his motion to determine competence to testify, even voluntarily, I
conclude the trial court did not abuse its discretion, given the procedural
defensive maneuvers by petitioner, in requiring petitioner to submit to a
medical examination while in Florida. Like the Fifth District, I agree the
trial court should have the discretion to follow the reasoning of Kibbler,
particularly when that will facilitate the presentation of evidence.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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