Filing # 173730870 E-Filed 05/22/2023 11:01:04 PM
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`IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT
`IN AND FOR HILLSBOROUGH COUNTY, FLORIDA
`CIRCUIT CIVIL
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`MEIBEL SABOYA DIAZ,
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`PLAINTIFF,
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` Case No: 2023 CA 000499
`VS.
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`SEAWORLD PARKS &
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`ENTERTAINMENT
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`LLC D/B/A BUSCH GARDENS,
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`DEFENDANT.
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`___________________________________________/
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`OBJECTION TO NOTICE OF PRODUCTION FROM NON-PARTY TO ALL
`THIRD PARTIES LISTED IN THE NOTICE DATED 5/22/23, MOTION FOR
`PROTECTIVE ORDER, AND MOTION TO QUASH SUBPOENAS NOTICED 5/22/23
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`Come(s) now Plaintiff(s), by and through the undersigned counsel, pursuant to Fla. R. Civ.
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`Pro. 1.410 and related rules, and hereby file(s) this objection to the Defendant’s Notice of
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`Production Non-Party, dated May 22, 2023, and hereby objects to the third-party subpoenas
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`directed to Plaintiff’s various past medical providers, health insurance company, and non-relevant
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`entities, and move(s) the Court for a protective order, and moves to quash the subpoenas, stating
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`the grounds therefore as follows:
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`1. Defendant issued notices of subpoenas for the following third parties on May 22, 2023:
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`Department of Highway Safety & Motor Vehicles
`Florida Department of Financial Services- Division of Workers’
`Compensation
`CORA Health Services, Inc.
`Laboratory Corporation of America
`Sarasota Memorial Hospital
`AMA Health Bayview Medical
`Coastal Eye Institute
`Florida Digestive Disease Specialists
`Eye Care Associates of Sarasota
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`1
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`IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT
`IN AND FOR HILLSBOROUGH COUNTY, FLORIDA
`CIRCUIT CIVIL
`
`
`MEIBEL SABOYA DIAZ,
`
`PLAINTIFF,
`
`
` Case No: 2023 CA 000499
`VS.
`
`
`
`
`
`
`
`
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`SEAWORLD PARKS &
`
`ENTERTAINMENT
`
`LLC D/B/A BUSCH GARDENS,
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`
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`DEFENDANT.
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`___________________________________________/
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`OBJECTION TO NOTICE OF PRODUCTION FROM NON-PARTY TO ALL
`THIRD PARTIES LISTED IN THE NOTICE DATED 5/22/23, MOTION FOR
`PROTECTIVE ORDER, AND MOTION TO QUASH SUBPOENAS NOTICED 5/22/23
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`Come(s) now Plaintiff(s), by and through the undersigned counsel, pursuant to Fla. R. Civ.
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`Pro. 1.410 and related rules, and hereby file(s) this objection to the Defendant’s Notice of
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`Production Non-Party, dated May 22, 2023, and hereby objects to the third-party subpoenas
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`directed to Plaintiff’s various past medical providers, health insurance company, and non-relevant
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`entities, and move(s) the Court for a protective order, and moves to quash the subpoenas, stating
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`the grounds therefore as follows:
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`1. Defendant issued notices of subpoenas for the following third parties on May 22, 2023:
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`Department of Highway Safety & Motor Vehicles
`Florida Department of Financial Services- Division of Workers’
`Compensation
`CORA Health Services, Inc.
`Laboratory Corporation of America
`Sarasota Memorial Hospital
`AMA Health Bayview Medical
`Coastal Eye Institute
`Florida Digestive Disease Specialists
`Eye Care Associates of Sarasota
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`1
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`The Center for Skin Wellness
`Florida Cancer Specialists
`HCA Florida Sarasota Hospital
`United Healthcare Services, Inc.
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`2. It is of utmost importance to understand the Plaintiff suffered a fracture to her patella (knee
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`fracture ) as a result of the fall alleged in the complaint, and she is not requesting damages
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`for any other type of injury.
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`3. She is not claiming any other type of injury. She broke her knee- that is all.
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`4. Plaintiff has already responded to interrogatories clearly notifying the defendant of that
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`position (See Snippets from Plaintiff’s Response to Defendant’s Interrogatories dated
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`March 31, 2023:
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`2
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`Redacted are the list of medical providers. For reference, the medical providers listed include
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`some of the subpoenaed parties, including: Cora Health Services, Inc.; Laboratory Corporation of
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`America; and Sarasota Memorial Hospital.
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`Plaintiff continues to discuss the injuries sustained in the fall in response to Interrogatory
`Question number 4, as follows:
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`5. It is clear that treatment related to the knee would be discoverable, but all of the other
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`overreaching subpoenas would be a clear invasion of Plaintiff’s Florida Constitutional
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`Right to Privacy and the Florida Supreme Court’s Constitutional Right to Privacy.
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`6. The subpoenas are overbroad and overreaching.
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`7. Plaintiff does not object to Defendant requesting limited records relating to knee treatment
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`only from subpoenaed providers: Cora Health Services, Inc.; Laboratory Corporation of
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`America; and Sarasota Memorial Hospital.
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`8. However, Plaintiff does object to Defendants’ request for all other records in full listed in
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`the subpoena.
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`9. The subpoenas are unreasonable and oppressive. See Fla. R. Civ. P. 1.410(c).
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`10. Furthermore, the subpoenas are too indefinite to permit an appropriate response. The law
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`requires that the subpoena state with reasonable particularity the documents sought to be
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`produced. See Vann v. State, 85 So. 2d 133, 136 (Fla. 1956).
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`11. It appears that Defendant wants all records ever made for Plaintiff.
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`12. Pursuant to Fla. R. Civ. P. 1.280(b)(1), information or materials that are not “reasonably
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`calculated to lead to the discovery of admissible evidence” and are not “relevant” and not
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`discoverable. Fla. R. Civ. P. 1.280(b)(1).
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`13. Records older than ten (10) years are too remote in time to be relevant or admissible.
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`14. This Court has "embrace[d] the Supreme Court's conclusion that litigants are not entitled
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`to carte blanche discovery of irrelevant material." Residence Inn by Marriott v. Cecile
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`Resort, Ltd., 822 So.2d 548, 550 (Fla. 5th DCA 2002). See Allstate Ins. Co. v. Langston,
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`655 So.2d 91, 94 (Fla.1995)(discovery should be denied when it has been established that
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`the information requested is neither relevant to any pending claim or defense nor will it
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`lead to the discovery of admissible evidence).
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`15. Discovery in civil cases must be relevant to the subject matter of the case and must be
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`admissible or reasonably calculated to lead to admissible evidence. Broadcasting of
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`Jacksonville, Inc. v. MGM-Pathe Communications Co., 629 So.2d 852, 854 (Fla. 1st DCA
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`1993). ("It is axiomatic that information sought in discovery must relate to the issues
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`involved in the litigation, as framed in all pleadings."); Fla. R. Civ. P. 1.280(b)(1)
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`(discovery must be relevant to the subject matter of the pending action).
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`16. The law requires that Defendant show a nexus or link between the incident in the complaint
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`and the medical records requested, and in this case the Defendant has failed to show the
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`nexus between the requested records and the fall outlined in the complaint. See Mcenany
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`v. Ryan, October 6, 2010 (Fla. 4th DCA 2010).
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`17. A patient's medical records enjoy a confidential status by the right to privacy in Article I,
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`section 23 of the Florida Constitution. State v. Johnson, 814 So.2d 390, 393 (Fla.2002).
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`The trial court is charged with balancing the right to broad discovery against an individual's
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`competing privacy interests to prevent an undue invasion of privacy. See Barker v. Barker,
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`909 So.2d 333, 338 (Fla. 2d DCA 2005) (citing Rasmussen v. S. Fla. Blood Serv., Inc., 500
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`So.2d 533, 535 (Fla.1987)). Certiorari may be appropriate where a discovery order compels
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`disclosure of medical or other records that infringe upon a party's constitutional privacy
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`rights. See e.g., James v. Veneziano, 98 So.3d 697 (Fla. 4th DCA 2012) (granting a
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`certiorari petition and quashing the trial court's order that compelled discovery of 10 years'
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`worth of medical records on the grounds that irreparable harm was established by the
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`implication of the constitutionally-recognized right to privacy and the trial court departed
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`from the essential requirements of law by requiring the immediate disclosure of the records
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`without first conducting in camera review to determine relevancy).
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`18. An in-camera inspection of the records is necessary if a clear link or nexus is not shown by
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`Defendant between the incident in the complaint and the medical record requested. See
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`Mcenany v. Ryan, October 6, 2010, No. 4D02-2292(Fla. 4th DCA 2010). Cf also Bergmann
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`v. Freda, 829 So.2d 966 (Fla. App., 2002)(requiring “link” between negligence and
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`medical records in medical malpractice case.).
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`19. If the nexus is not shown, then the full extent to which the medical records are relevant can
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`be determined only after the trial court examines the records in camera and allows the
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`parties to argue relevance at a new hearing. See James v. Veneziano, 98 So.3d 697 (Fla.
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`App., 2012); Muller v. Wal-Mart Stores, Inc., 164 So.3d 748 (Fla. App., 2015).
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`20. Once the in-camera inspection and arguments on relevancy occur, the trial court’s order
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`must also provide for only limited access to the records disclosed so as to protect the
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`petitioner’s constitutional and statutory rights to privacy of the records. See also Estate of
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`Carrillo v. F.D.I.C., 2012 WL 1831596, at *4 (S.D.Fla.2012).
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`21. A party who successfully opposes a subpoena duces tecum may be awarded attorneys’ fees
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`(as opposed to a nonparty witness who quashes a subpoena not being entitled to fees), and
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`therefore Plaintiff requests attorney fees from Defendant if the subpoena is quashed by the
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`Court. Expeditions Unlimited, Inc. v. Rolly Marine Services, Inc., 447 So. 2d 453 (Fla. 4th
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`DCA 1984).
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`22. It is proper to quash a subpoena served upon a witness if it bears “no legal pertinence
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`whatever to the issues in the case and thus could not be of any potential assistance.” State
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`v. Mesa, 396 So.2d 242 (Fla. 3d DCA 1981); Doe v. State, 262 So.2d 11 (Fla. 3d DCA
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`1972). See Poston v. Wiggins, 112 So. 3d 783 (Fla. App., 2013)(stating pre-accident
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`pharmacy records of one year back may be relevant in a car accident case).
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`23. The cost to Plaintiff of Defendant collecting every irrelevant medical record that Plaintiff
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`ever had would create undue burden for Plaintiff in reaching justice in this case, and it
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`would create unjustifiable expense.
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`24. The rules for protective order are designed to avoid just this type of non-party subpoena
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`request. See Fla. R. Civ. Pro. 1.280 (c) stating that for “good cause shown, the court in
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`which the action is pending may make an order to protect a party or person from annoyance,
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`embarrassment, oppression or undue burden or expense that justice requires.”
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`25. As good cause to enter a protective order for such objectionable records, Plaintiff submits
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`that the Defendant has already request numerous records at a great expense to Plaintiff to
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`obtain copies. Further, some of these records are not discoverable and are protected by
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`Plaintiff’s constitutional right to privacy (federal and state).
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`26. Also, the cost of sorting through every single medical records that Plaintiff had, in time
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`and expense, would be unreasonable for what is very clearly a knee injury case.
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`27. Requests for gastroenterology records, eye records, health insurance company records,
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`workers compensation records (when Plaintiff has admitted she is retired and has not ever
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`had a workers compensation claim, lab records generally, dermatologist records, digestive
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`records, and unrelated hospital records would be inappropriate under the facts of this case.
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`Could the defense logically propose to a jury that the digestive issues caused the knee
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`problem? It is doubtful.
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`28. To determine whether a protective order is appropriate, the court must balance the
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`competing interest that would be served by granting discovery or by denying it. Rasmussen
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`v. South Fla. Blood Serv., 500 So.2d 533, 535 (Fla. 1987).
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`29. The information sought will only serve as irrelevant evidence, inadmissible, and will
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`confuse and mislead any trier of fact if mistakenly admitted.
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`30. Allowing the defense to access records carte blanche of the Plaintiff would be a clear
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`invasion of privacy.
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`31. Plaintiff sees no valid argument for any relationship between her current injuries related to
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`the fall of November 2, 2019 and the above referenced providers (essentially knee injury).
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`32. Allowing Defendant to have access to any such information would simply serve to
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`embarrass and harass Plaintiff and will create additional unnecessary cost to Plaintiff.
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`Wherefore, Plaintiff’s respectfully request that the subpoenas related to the above referenced
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`providers are quashed and that the Court recommends a revision to the subpoena for those
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`providers who did treat Plaintiff for her knee to just limited knee treatment records, moves for
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`protective order, and any other remedy that this Court deems just and proper.
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`CERTIFICATE OF SERVICE
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`I HEREBY CERTIFY that a true and correct copy of the foregoing document has been
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`furnished by Electronic Mail in accordance with Fla. R. Jud. Admin. 2.516, or in accordance with
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`the relevant applicable Florida Rule of Civil Procedure, to the referenced party on the date below,
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`and at the following designated email service address(es):
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`Carie L. Hall, Esq.
`Robert L. Blank, Esq.
`Ryan S. Brown, Esq.
`Rumberger, Kirk & Caldwell, P.A.
`100 North Tampa Street, Ste. 2000
`Post Office Box 3390
`Tampa, Florida 33601-3390
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`Email:
`rblanksecy@rumberger.com
`docketingtpa@rumberger.com
`chall@rumberger.com
`challsecy@rumberger.com
`rbrown@rumberger.com
`rbrownsecy@rumberger.com
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`Dated May 22, 2023.
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`__________________________________
`Amy K. Kenyon, Esq.
`Florida Bar No.: 73526
`Kenyon Law Group, P.L.L.C.
`1215 Manatee Avenue West, Ste. 105
`Bradenton, Florida, 34205
`(941) 894-1234 phone
`(941) 882-6225 fax
`E-serve: eservice@kenyonlawfirm.com
`Attorney for Meibel E. Saboya Diaz
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