Opinion
No. 95-1742.
June 28, 1995.
Petition from the Circuit Court for Broward County, Leroy H. Moe, J.
Edna L. Caruso of Caruso, Burlington, Bohn Compiani, P.A., and Todd S. Stewart of Searcy, Denney, Scarola, Barnhart Shipley, P.A., West Palm Beach, for petitioners.
Gordon James, III and Valerie Shea of Heinrich Gordon Hargrove Weihe James, P.A., Fort Lauderdale, for respondent.
We grant petitioner's petition for writ of certiorari and quash the trial court's order on respondent's motion to compel a private independent psychiatric examination of Josef Paul Palank and Taylor Rose Palank and for costs. The order provides:
ORDERED AND ADJUDGED that said Motion be, and the same is hereby granted in part and denied in part; Mrs. Palank only may be present at the examination. No one else shall be present. Neither Mrs. Palank nor plaintiff's counsel is permitted to sound record or video record the examination. Both parties motions to tax cost are denied. Neither Angel Palank nor Josef Palank, nor Taylor Palank may have counsel present at the examination.
Josef and Taylor Palank, are minor plaintiffs in the underlying wrongful death action seeking damages for the death of their father allegedly caused by the negligence of respondent. The children are now eight years old and four years old, respectively. The order on review follows two previous orders: the first entered on petitioner's motion for a protective order regarding the compulsory examination of the children and the second order relating to the procedure for conducting such examinations.
At the request of any party, the trial court has discretion to establish protective rules for independent medical examinations under rule 1.360(a)(3), Florida Rules of Civil Procedure. We find merit in petitioner's argument that a need exists to accurately record the events during the examination, especially where children are involved. The conflicting evidence concerning the presence of third parties during the examination does not support the trial court's exclusion of counsel and a court reporter or a tape recording device from the examination. See Toucet v. Big Bend Moving Storage, Inc., 581 So.2d 952 (Fla. 1st DCA 1991); see generally Bartell v. McCarrick, 498 So.2d 1378 (Fla. 4th DCA 1986); Gibson v. Gibson, 456 So.2d 1320 (Fla. 4th DCA 1984).
Accordingly, we quash the trial court's order compelling a private independent psychiatric examination of the minor plaintiffs and remand this cause to the trial court for entry of an order providing for the independent psychiatric examination with the mother, counsel for the plaintiff and a means of recording; either court reporter or a tape recorder present.
CERTIORARI GRANTED.
DELL, C.J., and GUNTHER and STEVENSON, JJ., concur.