Royal Caribbean Cruises, Ltd. v. Cox

Decision Date23 January 2008
Docket NumberNo. 3D07-1515.,3D07-1515.
Citation974 So.2d 462
PartiesROYAL CARIBBEAN CRUISES, LTD., Petitioner, v. Byron COX, Respondent.
CourtFlorida District Court of Appeals

Rodriguez, Aronson & Essington and Domingo C. Rodriguez and Patricia Leigh McMillan Minoux, for petitioner.

Russo Appellate Firm and Elizabeth K. Russo and Craig Lee Montz; Luis A. Perez; and William F. Fabra, Miami, for respondent.

Before GREEN, ROTHENBERG, and SALTER, JJ.

ROTHENBERG, Judge.

The defendant/petitioner, Royal Caribbean Cruises, Ltd. ("RCCL"), seeks a writ of certiorari to review the trial court's non-final order denying its Motion to Compel a Supplemental Compulsory Physical Examination of the plaintiff/respondent, Byron Cox ("Cox"), by Dr. John Wilkerson. We grant the petition for writ of certiorari and quash the trial court's order.

In August 2004, Cox, a foreign seaman, filed an action seeking damages for Jones Act negligence, unseaworthiness, failure to treat, maintenance and cure, and unearned wages, stemming from injuries he allegedly sustained while onboard an RCCL vessel on January 12, 2004. Following his alleged injuries, Cox was treated for lower back pain by RCCL's physicians who then referred Cox to Dr. Jorge Ibars, a Board Certified Neurosurgeon. Dr. Ibars found that Cox had a disc protrusion at L3-L4, but did not recommend surgery; that Cox was at maximum medical improvement ("MMI"); and that Cox had a five percent impairment rating.

Shortly thereafter, Cox was seen by Dr. Richard Rozencwaig, a physician chosen by Cox, for lower back pain and shoulder pain. After treating Cox for several months, Dr. Rozencwaig referred Cox to Dr. Rolando Garcia, an orthopedic surgeon. Dr. Garcia performed back surgery on Cox. In May 2005, Dr. Rozencwaig performed arthroscopic surgery on Cox's left shoulder. Following this first procedure, on September 7, 2006, RCCL had an orthopedic independent medical examination ("IME") performed on Cox by Dr. Anthony Dorto.

On October 5, 2006, during a deposition, Dr. Rozencwaig testified that Cox needed a second operation on his left shoulder. Based on Dr. Rozencwaig's testimony, RCCL moved to continue the trial, arguing that Cox was not at MMI, and therefore, he was not ready to proceed to trial. Cox then requested that RCCL reinstate his maintenance and cure benefits. On October 12, 2006, the trial court granted RCCL's motion to continue the trial.

RCCL then moved to compel a supplemental IME of Cox's left shoulder by its orthopedic expert, Dr. Wilkerson. Cox objected, stating that he did not want to have the second operation on his left shoulder, and Cox withdrew his request for reinstatement of maintenance and cure benefits. The trial court granted RCCL's motion, and on' November 11, 2006, Dr. Wilkerson conducted an IME of Cox. Following this IME, Dr. Wilkerson agreed that Cox needed a second surgery, but he disagreed with Dr. Rozencwaig's suggested procedure, and concluded that a more extensive procedure was indicated.

Trial was scheduled for Monday, November 27, 2006, and on Friday, November 24, 2006, Cox reinstated his demand for maintenance and cure benefits, and requested that the second operation be performed as soon as possible after the trial. In response to Cox's demand, at the commencement of trial on November 27, RCCL moved to preclude Cox's claim for maintenance and cure, or alternatively, to continue the trial. The trial court granted RCCL's motion to continue, and reset the trial for April 30, 2007.

On March 15, 2007, Dr. Rozencwaig performed the second operation on Cox's shoulder. Thereafter, RCCL moved for another continuance, arguing that Cox was not at MMI. At the hearing on this motion to continue, Cox explained that he would be in this country on medical parole until June 23, 2007, and the trial was reset for the third week of June.

RCCL then filed its motion to compel a second IME with Dr. Wilkerson, arguing that RCCL would be severely prejudiced if Dr. Wilkerson was forced to testify at trial without being allowed to re-examine Cox after his second shoulder operation. Cox objected, arguing that Dr. Wilkerson's IME of Cox prior to the second operation was sufficient, and that Florida Rule of Civil Procedure 1.360 does not allow multiple examinations for the same injury. The trial court denied RCCL's motion for supplemental examination, but directed Cox to provide RCCL with all "additional medical reports, and radiology films (x-ray, MRI, CT scan, etc.) as soon as available." The trial court denied RCCL's subsequent motion for rehearing, and this petition followed.

Ordinarily, orders denying discovery are not reviewable by certiorari because the harm from such orders can generally be rectified on appeal. Ruiz v. Steiner, 599 So.2d 196, 197 (Fla. 3d DCA 1992). However, certiorari review has been granted where discovery orders cause irreparable injury to the petitioner. Id. Issuing a writ of certiorari in the instant case is necessary because the order under review is: "(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal." Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 822 (Fla.2004).

Departure From the Essential Requirements of the Law

Florida Rule of Civil Procedure 1.360(a) allows one party to conduct physical examinations of another where a two-part test is satisfied. The first part provides: "A party may request any other party to submit to, or to produce a person in that other party's custody or legal control for, examination by a qualified expert when the condition that is the subject of the requested examination is in controversy." Fla. R. Civ. P. 1.360(a)(1) (emphasis added). The second requirement is that "the party submitting the request has good cause for the examination." Fla. R. Civ. P. 1.360(a)(2) (emphasis added). Additionally, contrary to Cox's argument to the trial court, the language of Florida Rule of Civil Procedure 1.360(a) does not limit the party requesting an IME to a single examination of the other party.

RCCL argues that the trial court's order departed from the essential requirements of the law because the nature of Cox's claims against RCCL placed Cox's physical condition in controversy, and that Cox's second shoulder operation caused a substantial change in that physical condition, thereby giving RCCL good cause to request another IME with Dr. Wilkerson. We agree.

The "in controversy" requirement of Florida Rule of Civil Procedure 1.360(a)(1) is clearly satisfied in this case. Cox's claims against RCCL arise out of alleged injuries he sustained onboard an RCCL vessel on January 12, 2004, and Cox asserts that these injuries are continuing in nature. In addition, one of the central issues in this case is whether Cox has reached MMI, or is owed maintenance and cure benefits. At trial, Cox will argue as to the nature and extent of his alleged injuries, and base his claim for damages upon his past, current, and future physical conditions. Cox's physical condition after the second shoulder operation, therefore, is clearly "in controversy" in the instant case.

Before being authorized to conduct another IME of Cox by Dr. Wilkerson, RCCL also had the burden of showing good cause for the examination. Fla. R. Civ. P. 1.360(a)(2). In a negligence action where a plaintiff asserts that he or she has sustained mental or physical injuries, the defendant's good cause for conducting an initial IME is normally shown without any further inquiry. Fla. Emergency Physicians-Kang & Assocs., M.D., P.A. v. Parker, 800 Sa.2d 631, 634 (Fla. 5th DCA 2001). However, when a defendant requests a subsequent IME, the defendant should make a stronger showing of necessity before that request is authorized. Vopelak v. Williams, 12 Ohio Misc. 93, 42 F.R.D. 387, 389 (1967).1 We conclude that because Cox's physical condition underwent a substantial change after Dr. Wilkerson's first IME, RCCL has proven good cause for requesting and conducting another IME.

It is undisputed that on March 15, 2007, after Dr. Wilkerson's first IME of Cox, Dr. Rozencwaig performed a second operation on Cox's shoulder. Therefore, Cox's physical condition underwent substantial changes since he was first examined by Dr. Wilkerson, and thus, RCCL and its experts had good cause to request and conduct another IME in order to update their opinion of Cox's condition following the second invasive procedure performed on Cox's shoulder.

We cannot conclude that RCCL's request was overly burdensome, unnecessarily cumulative, or harassing to Cox in any way. In fact, Cox has failed to show that any harm would result from his submitting to another IME by Dr. Wilkerson, especially when the scope of the requested IME may be focused, in the trial court's discretion, to a limited determination of the effect of the second shoulder operation on Cox's condition. See Fla. R. Civ. P. 1.360(a)(3) (stating that the trial court may establish protective rules governing the scope of requested examinations).

Florida Rule of Civil Procedure 1.360(a) states that an IME is authorized when the examined party's condition is in controversy, and the requesting party has good cause to request the examination. Thus, the trial court's order departs from the essential requirements of the law because Cox's claims placed his physical condition in controversy (both before and after the second operation), and RCCL showed good cause for requesting and conducting the subsequent IME given the substantial change in Cox's condition.

Material Injury for the Remainder of the Case

This Court is without jurisdiction to grant RCCL's petition and issue the writ unless the trial court's order denying RCCL's request to conduct a supplemental IME of Cox by Dr. Wilkerson causes material harm to RCCL that will last for the remainder of the case. Reeves, 889 So.2d at 822. RCCL has proven the requisite...

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7 cases
  • Acevedo v. Doctors Hosp. Inc.
    • United States
    • Court of Appeal of Florida (US)
    • September 21, 2011
    ...material injury for the remainder of the case that cannot be corrected on post-judgment appeal. See Royal Caribbean Cruises, Ltd. v. Cox, 974 So.2d 462, 468 (Fla. 3d DCA 2008). The information petitioners seek is material and goes to the heart of their case such that no other documents can ......
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    • Court of Appeal of Florida (US)
    • August 17, 2011
    ...material injury for the remainder of the case that cannot be corrected on post-judgment appeal. See Royal Caribbean Cruises, Ltd. v. Cox, 974 So. 2d 462, 468 (Fla. 3d DCA 2008). The information petitioners seek is material and goes to the heart of their case such that no other documents can......
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    • Court of Appeal of Florida (US)
    • January 12, 2016
    ...reviewable by certiorari because the harm from such orders can generally be rectified on appeal." Royal Caribbean Cruises, Ltd. v. Cox, 974 So.2d 462, 465 (Fla. 3d DCA 2008) (citing Ruiz v. Steiner, 599 So.2d 196, 197 (Fla. 3d DCA 1992) ). However, an exception to this general rule applies ......
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    • January 23, 2008
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2 books & journal articles
  • Certiorari Review of Orders Denying Discovery in Civil Cases.
    • United States
    • Florida Bar Journal Vol. 96 No. 3, May 2022
    • May 1, 2022
    ...medical examinations of plaintiffs. (9) Space does not permit a discussion of the 2-1 decision in Royal Caribbean Cruises v. Cox, 974 So. 2d 462 (Fla. 3d DCA 2008), but the majority and dissenting opinions discussed jurisdiction at 8) Key physical evidence. (10) 9) Information related to se......
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    • United States
    • Florida Bar Journal Vol. 96 No. 2, March 2022
    • March 1, 2022
    ...have: Verizon Bus. Network Servs. v. Fla. Dep't of Corrections, 960 So. 2d 916, 917 (Fla. 1st DCA 2007); Royal Caribbean Cruises v. Cox, 974 So. 2d 462, 468 (Fla. 3d DCA 2008); Anderson v. Vander Meiden, 56 So. 3d 830, 832-33 (Fla. 2d DCA 2011); State Farm Mut. Auto. Ins. Co. v. Pace, 128 S......

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