On Monday, CCL argued that the defendants argued for an implausible construction of the Florida rules of civil procedure, in a specious effort to avoid invalidation of a statute that expands presuit discovery to include ex parte interviews with a medical malpractice plaintiff’s treating physicians, including those who treated the plaintiff two years before the alleged malpractice. In the reply brief filed in Florida’s First District Court of Appeals, CCL President Robert S. Peck argued that the rule’s delineation of three forms of permissible discovery was exclusive under applicable canons of constitutional construction and that the Legislature had no authority to expand the available methods because the state constitution limited that authority to the Supreme Court. Opposing counsel argued that the use of the word “may” in the rule that stated parties may use one or more of the following methods indicated that the rule anticipated legislative expansion. The CCL brief rejoined that the word “may” simply made presuit discovery permissible rather than obligatory.

In addition to responding to other arguments, the CCL brief made a special point about the state constitutional right of privacy. The trial court had found that the plaintiff had neither standing to make a privacy claim nor was entitled to make such a constitutional claim against a private party. The defendants simply parroted that ruling. CCL, however, pointed out that the trial court and defendants had conflated arguments applicable to the invasion of privacy tort, which seeks damages, with the constitutional right in a case that merely seeks a declaration of rights. Moreover, the brief said, the necessary state action occurred when the legislature passed the statute. Because the defendants had indicated their intention to utilize the statute, they were proper parties to a declaratory judgment action to decide the constitutionality of the underlying statute.

With briefing now complete, the case will soon be set for oral argument.