Olges v. Dougherty

• Citation: 856 So.2d 6
• Decision Date: 29 August 2003
• Docket Number: No. 1D02-5152.,1D02-5152.
• Parties: Darrell OLGES, Petitioner, v. Michelle DOUGHERTY and Brett Steven Trask, Respondents.
• Court: Court of Appeal of Florida (US)

856 So.2d 6

Darrell OLGES, Petitioner, v. Michelle DOUGHERTY and Brett Steven Trask, Respondents.

No. 1D02-5152.

District Court of Appeal of Florida, First District.

August 29, 2003.

Rehearing Denied October 13, 2003.

Brian J. Lee, Esquire and Carl Scott Schuler, Esquire of the Law Offices of Carl Scott Schuler, P.A., Jacksonville, for Petitioner.

Kimberly M. Reid, Esquire and David R. Evelev, Esquire of Alvarez, Sambol, Winthrop & Madson, P.A., Orlando, for Respondents.

BENTON, J.

By petition for writ of certiorari, Darrell Olges, the plaintiff in an automobile accident case, asks us to quash a trial court's order (stayed pending review here), compelling him to "submit to an examination... including a psychological clinical interview and ... psychological testing." We grant the petition for writ of certiorari and quash the order.

I.

Mr. Olges brought suit seeking to recover damages for injuries allegedly sustained on March 28, 2001, when the car he was driving collided with Brett Steven Trask's car, which Michelle Dougherty was driving. The original complaint sought damages for "bodily injury and resulting pain and suffering, disability, disfigurement, mental anguish, loss of capacity for the enjoyment of life, expense of hospitalization, medical and nursing care and treatment, loss of earnings, loss of ability to earn money, and aggravation of a previously existing condition." Later, faced with the prospect of a mental examination, he withdrew all claims for damages for future lost wage-earning capacity, past or future mental anguish, and past or future emotional distress or other emotional damages.

On October 9, 2002, Ms. Dougherty and Mr. Trask filed a motion seeking an order requiring Mr. Olges to submit to a "vocational rehabilitation evaluation" conducted by one Michael Shahnasarian, Ph.D., who is, among other things, a licensed psychologist, licensed mental health counselor, diplomate of the American Board of Psychological Specialties, certified rehabilitation counselor, and certified life care planner. Mr. Olges objected and moved for a protective order, arguing that a "vocational rehabilitation evaluation" was not warranted because he had withdrawn his claim for future lost wage-earning capacity. Anticipating that Dr. Shahnasarian would conduct psychological testing, the motion for protective order also argued that Mr. Olges "should not be required to submit to psychological evaluations or other similar procedures under the guise of a "vocational rehabilitation evaluation.'"

II.

At the hearing on the motions on November 7, 2002, the defendants below shifted their ground somewhat, seeking to compel Mr. Olges to submit to an evaluation by Dr. Shahnasarian principally in his capacity as a life care planner.¹ Dr. Shahnasarian testified that in preparing Mr. Olges's life care plan he would take into account the spinal column stimulator prescribed by Christopher Roberts, M.D., Mr. Olges's treating physician and a pain management specialist.² But Dr. Shahnasarian also testified that he wanted to perform psychological testing. He told the trial judge that physicians who are pain management specialists typically "order a battery of psychological testing" before prescribing a spinal column stimulator, stating: "[I]t is standard practice among physicians to do some type of a testing, typically the MMPI,³ which is a test that I would like to administer to Mr. Olges, prior to recommending [an] implant...."

In response to Dr. Shahnasarian's testimony—and defense counsel's argument that Dr. Shahnasarian should be allowed "to comment on" the use of an implanted device for managing Mr. Olges's pain—the trial judge asked (then answered) a rhetorical question: "What can he possibly comment on whether or not that is an effective modality for the treatment of pain? He's not an MD." The trial judge denied the motion for protective order nevertheless, and directed Mr. Olges to submit to examination by Dr. Shahnasarian, for the stated reason that pain management treatment involves "a very heavy emphasis on the psychological aspect of the party."

The trial judge specifically ruled that the examination could consist of a "psychological clinical interview and any testing including an MMPI or other psychological testing referenced during the course of... testimony at the hearing...." When Mr. Olges indicated his intention to seek review by filing a petition for writ of certiorari, the trial judge stayed the order pending disposition of the petition. Before filing the petition, Mr. Olges again moved for a protective order, this time attaching to his motion an affidavit in which Dr. Roberts states that "there is no medical need or justification" for ordering "any psychological testing or evaluation." After the trial court denied his renewed motion, Mr. Olges filed the instant petition for writ of certiorari.

III.

We review the merits of a non-final order on petition for writ of certiorari only where "[t]he order ... cause[s] material injury to the petitioner [that cannot be cured] throughout the remainder of the proceedings below, effectively leaving no adequate remedy on appeal." Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla.1987); Naghtin v. Jones, 680 So.2d 573, 577 (Fla. 1st DCA 1996). "[I]t is ... necessary for an appellate court to conduct a jurisdictional analysis prior to testing whether the nonfinal order ... is a `departure from the essential requirements of law.' Thus, ... a petitioner must [first] establish that an interlocutory order creates material harm irreparable by postjudgment appeal...." Parkway Bank v. Fort Myers Armature Works Inc., 658 So.2d 646, 649 (Fla. 2d DCA 1995). See also Jaye v. Royal Saxon, Inc., 720 So.2d 214, 215 (Fla.1998) ("[I]t is settled law that, as a condition precedent to invoking a district court's certiorari jurisdiction, the petitioning party must establish that it has suffered an irreparable harm that cannot be remedied on direct appeal.").

Interlocutory orders requiring mental examinations are held to cause harm of a kind that cannot be remedied on appeal from final judgment. "In the context of compelled [mental] examinations, the required element of irreparable harm may be found based on the notion that once the invasive harm of the examination occurs, it cannot be undone on appeal." Taylor v. Columbia/HCA Doctors Hosp. of Sarasota, 746 So.2d 1244, 1245 (Fla. 1st DCA 1999). See also Martin-Johnson, Inc., 509 So.2d at 1100 ("We recognize that discovery of certain types of information may reasonably cause material injury of an irreparable nature. Illustrative is `cat out of the bag' material that could be used by an unscrupulous litigant to injure another person or party outside the context of the litigation."); Vo v. Bui, 680 So.2d 601, 601 (Fla. 2d DCA 1996) (treating case as involving a petition for writ of certiorari because the alleged harm, a nonfinal order "requiring the wife to undergo a psychological evaluation .... will not be remediable on appeal" (citation omitted)); Gasparino v. Murphy, 352 So.2d 933, 935 (Fla. 2d DCA 1977) ("It goes without saying that petitioner could suffer irreparable injury by virtue of a compulsory psychiatric examination. Discovery of this type is of the most personal and private nature. The potentially negative effects of requiring petitioner to bare his inner self against his wishes are self-evident.").

IV.

Safely across the initial, jurisdictional threshold, Mr. Olges also has the burden to demonstrate that the trial court departed from the essential requirements of law in ruling as it did. See Martin-Johnson, Inc., 509 So.2d at 1099; St. Paul Fire & Marine Ins. Co. v. Marina Bay Resort Condo. Ass'n, Inc., 794 So.2d 755, 756 (Fla. 1st DCA 2001). Central to this aspect of the case is Florida Rule of Civil Procedure 1.360's ("Examination of Persons") requirement that any party requesting that another party be subjected to a mental examination be able to show good cause for ordering the examination.

A.

At the motion hearing below, it was incumbent upon the defendants (respondents here) to establish good cause, beginning with proof of the facts on which they relied as proponents of the examination. If good cause had been shown, it would have been within the authority of "the court [to] establish protective rules governing such examination." Fla. R. Civ. P. 1.360(a)(3). See also Fla. R. Civ. P. 1.280(c) ("Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending may make any order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense that justice requires...."); Medina v. Yoder Auto Sales, Inc., 743 So.2d 621, 623 (Fla. 2d DCA 1999) ("The party moving for the protective order has the burden to show good cause."). But the question of protective rules or protective orders never arises and the burden never shifts unless the proponent of the examination shows good cause for an examination in the first place. See Fla. R. Civ. P. 1.360(a)(2) ("An examination under this rule is authorized only when the party submitting the request has good cause for the examination. At any hearing the party submitting the request shall have the burden of showing good cause.").

B.

By the time of the hearing, the complaint's prayer for "medical and nursing care and treatment," in conjunction with Mr. Olges's possible need for a spinal column stimulator (which, although not specifically pleaded, had already been the subject of discovery), was the only basis remaining for respondents' asserted entitlement to the mental examination. Respondents' counsel stated as much at oral argument. Any hope the defendants had of proving good cause for requiring Mr. Olges to undergo a mental examination rode on the testimony of their only witness at the hearing, Dr. Shahnasarian.

Defense counsel described Dr. Shahnasarian as a ...