Russell v. Stardust Cruisers, Inc., 96-3377
| Decision Date | 04 April 1997 |
| Docket Number | No. 96-3377,96-3377 |
| Citation | 690 So.2d 743 |
| Parties | 22 Fla. L. Weekly D871 James E. RUSSELL, Jr., etc., et al., Petitioners, v. STARDUST CRUISERS, INC., etc., et al., Respondents, |
| Court | Florida District Court of Appeals |
Terry C. Young and Karen A. Williams of Lowndes, Drosdick, Doster, Kantor & Reed, P.A., Orlando, for Petitioners.
Karel L. Averill, of Fisher, Rushmer, Werrenrath, Wack & Dickson, P.A., Orlando, for Respondents, Holly Bluff Marina.
No Appearance for Stardust Cruisers, Inc.
Petitioner, James E. Russell, as personal representative of the estate of J. Gary Russell, decedent, petitions for a writ of certiorari seeking review of an order compelling production of decedent's psychiatric and psychological records in a wrongful death action. We grant the petition and quash the trial court's order.
Russell died after inhaling carbon monoxide vented from a generator while he was attempting to repair his houseboat. Petitioner filed suit on behalf of decedent's estate, and his wife Teresa and minor daughter Jennifer, against respondent Stardust Cruisers, Inc., the houseboat manufacturer, respondent Kohler Company, the manufacturer of the generator which allegedly leaked the carbon monoxide, and respondent Holly Bluff Marina, Inc., the company that sold, serviced and repaired the houseboat. Petitioner sought damages for loss of future support, services and companionship, and for the mental pain and suffering of Teresa and Jennifer. Damages were also sought on behalf of the estate for loss of prospective net accumulations. One of respondents' claimed affirmative defenses was that Russell or his wife Teresa was negligent.
Respondent Holly Bluff filed a Rule 1.351 notice of production from a nonparty psychologist and a nonparty psychiatrist. Holly Bluff served petitioner, the psychiatrist and the psychologist simultaneously. Holly Bluff sought production of all medical, counseling, psychological or psychiatric records regarding the care, treatment, examination or evaluation of the decedent for any condition or injury, regardless of the date the services were rendered. Because there was testimony and forensic evidence that Russell had been drinking shortly before the accident, Holly Bluff was attempting to determine if he had an alcohol or substance abuse problem. Within ten days of receiving the notice, petitioner timely raised several objections to the notice.
Holly Bluff filed a motion for an order compelling production of the psychiatric and psychological records. Petitioner objected on the procedural ground that once an objection was interposed to a Rule 1.351 notice, discovery must proceed under Rule 1.310 which requires taking the deposition of the custodian of the records sought. Second, petitioner objected on grounds of privilege and relevancy. Petitioner argued that section 90.503(2), Florida Statutes, prohibits the disclosure of confidential records or communications between the patient and psychotherapist made for the purpose of diagnoses or treatment of the patient's mental or emotional condition, including alcoholism or other drug addiction, and that the personal representative could claim the privilege on behalf of a deceased patient. Finally, petitioner objected because the records request was overbroad. The records sought were not restricted to the eight months Russell and Teresa were married, but to the entire period of treatment, part of which occurred prior to their marriage. This amounted to nothing more than a fishing expedition, petitioner argued. After a hearing, the trial court overruled all the objections and entered an amended order granting discovery of psychiatric, psychological and substance abuse records of the decedent. There were no time limitations. Production was stayed pending review of the order by certiorari.
Rule 1.351 is self-executing and an objection requires that a deposition of the records...
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...See Allstate Insurance Co. v. Langston, 655 So.2d 91 (Fla.1995); Amente v. Newman, 653 So.2d 1030 (Fla.1995); Russell v. Stardust Cruisers, Inc., 690 So.2d 743 (Fla. 5th DCA 1997). The concept of relevancy is broader in the discovery context than in the trial context and a party may be perm......
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...appears to be the type of carte blanche discovery the supreme court sought to guard against in Langston.See Russell v. Stardust Cruisers, Inc., 690 So.2d 743, 745 (Fla. 5th DCA 1997) (observing that while an individual's health, life expectancy, and habits are at issue and broad discovery i......
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