CCL President Robert S. Peck filed his opening brief in the First District Court of Appeals in Florida in Weaver v. Myers, a case challenging the constitutionality of a state statute that went into effect last year and requires medical-malpractice plaintiffs to authorize, during the presuit period in which they have to notify defendants of an intent to sue, unlimited ex parte interviews of their treating physicians. The doctors subject to interview include those who treated the plaintiff up to two years before the alleged malpractice, and the interviews may be conducted, without notice under certain circumstances, by the defendant, defendant’s insurers, defendant’s experts, and any of their attorneys. The trial judge found no constitutional problem with the requirement.

In arguing that the Court strike the law down, Peck stated that the law conflicts with a Rule 1.650 of the Florida rules of civil procedure, which was promulgated by the Florida Supreme Court to limit presuit discovery under the relevant statute. The Florida Constitution gives the Supreme Court exclusive authority to promulgate rules of procedure, and precedent holds that any statute that conflicts with an existing rule of civil procedure is null and void. The trial court ignored this categorical requirement by recasting the ex parte interview as “pretrial investigation,” rather than discovery even though the statute itself termed it discovery.

The brief also argued that the new ex parte provision violates the state constitutional right of privacy, the prohibition against special laws, and the guarantee of access to the courts.  The defendant and the State of Florida will now have an opportunity to file answering briefs.