The undersigned was appointed pursuant to Fla. R. Civ. P. 1.490 and the Order Appointing Special Magistrate (“ORDER”), dated March 3, 2023, to serve as Special Magistrate in this case. The ORDER directed the undersigned to hear and make a Report and Recommendation to the Presiding Circuit Court Judge, Thomas Ramsberger, on the discovery and other agreed upon matters.

The Second Amended Notice of Hearing Before Special Magistrate Gregory P. Holder, dated Monday, August 12, 2024 [D.E. #204492186], identified the following matter (among others) for argument and the Special Magistrate’s consideration and recommendations to the Court:

1. Lisa Black’s Objection to Circle K’s Notice of Production from Non-Parties dated 04/12/2024.
2. Plaintiff’s Objection to Circle K’s Notice of Production from Non-Parties dated 04/12/2024.
3. Circle K’s Motion to Compel Better Responses to Supplemental Request for Production or in the Alternative Motion to Compel Executed Authorizations dated 05/20/2024.
4. Circle K’s Motion to Overrule Plaintiffs’ and Lisa Black’s Objections to Notice of Production from Non-Parties dated 04/12/2024.

Plaintiffs’ Counsel and Circle K’ Counsel have certified that they attempted a meet and confer session prior to the hearing before the Special Magistrate which resolved some but not all the disputed issues between the parties. A ZOOM hearing was conducted before the undersigned on Monday, August 12, 2024, beginning at 5:00 p.m. The Special Magistrate did not prepare a Report and Recommendation prior to this date believing that the matters addressed within this Report were resolved. Apparently, as I have been recently informed, I was mistaken. Having reviewed the record, pleadings, discovery, motions, and all Court filings, including the transcripts of various prior proceedings, legal authority, and argument of Counsel for the parties, and non-party, Ms. Black, the Special Magistrate does hereby issue the following analysis, findings, and recommendations to the Court:

CIRCLE K’S MOTION TO COMPEL BETTER RESPONSES TO SUPPLEMENTAL REQUEST FOR PRODUCTION OR IN THE ALTERNATIVE MOTION TO COMPEL EXECUTED AUTHORIZATIONS DATED 05/20/2024.

Upon the commencement of this hearing, Counsel for the parties announced an agreement with respect to issue number three, Circle K’s Motion to Compel Better Responses to its Supplemental Request for Production or, in the Alternative, to Compel Executed Authorizations dated May 20, 2024. Thus, the parties agreed that Circle K’s Motion to Compel Better Responses should be denied as moot.

LISA BLACK’S NON-PARTY OBJECTION TO CIRCLE K’S NOTICE OF PRODUCTION FROM NON-PARTIES DATED 04/16/24 [D.E. #196293600]

On April 12, 2024, Non-Party, Lisa Herbolsheimer Black, through Counsel, filed her objection to Circle K’s Subpoenas Duces Tecum without Deposition (D.E. #196293600). Ms. Black objected to this discovery arguing that the discovery was irrelevant, beyond the discovery deadline, and violated Ms. Black’s constitutional right to privacy. Ms. Black’s Counsel provides no additional legal bases for her objections to this discovery. Plaintiffs’ Counsel also filed an objection to this discovery based upon relevance, timing, and a violation of Ms. Black’s right to privacy under Article 1, Section 23 of the Florida Constitution. Both Ms. Black’s Counsel and Plaintiffs’ Counsel argue that the discovery sought by Circle K is futile and should be prohibited.

These subpoenas were sought to be issued to various medical providers and prescription providers associated with Ms. Lisa Black. It is worth noting that Ms. Black was originally a defendant in this action but reached a settlement with the Plaintiffs resulting in her dismissal from this lawsuit and is now a non-party to this litigation.

Counsel for Circle K argued that this discovery is essential as Ms. Black was the catalyst for this entire tragedy, having been the driver of the vehicle that backed into the fuel pump which then trapped Ms. Caballes and caused the fire that resulted in Ms. Caballes’ death. Ms. Black was admittedly taking prescribed medication pursuant to physician orders and Circle K argues that Ms. Black’s medical condition and specific toxicology at the time of the accident is both discoverable and admissible relative to any Fabre argument and any claimed apportionment of liability.

There can be no doubt that the various objections to this discovery have not been waived. While Ms. Black, through Counsel, has admitted that she ran into the bollard, or ran into the gas dispenser, and that she was on medication that was legally prescribed by her doctors, she now objects to discovery as to the exact medication, dosages, and prescription schedule. Admittedly, the toxicology screen tested Ms. Black on the night of this accident would test for illegal substances and would not provide much of the information sought by Circle K’s Counsel.

CONCLUSION

It is the Special Magistrates recommendation that the Court overrule the Plaintiffs’ and Ms. Black’s objections relating to this discovery but that the discovery be limited to a timeframe of six months before the accident date of December 22, 2021, and that the discovery be limited to only those physicians or medical practice providers who prescribed medication to Ms. Black. With this limited scope of discovery, I recommend that the Court order Ms. Black to provide information in her possession within 48 hours of the Court’s Order. I further recommend that the Court compel production from validly served non-parties and issue Orders to Show Cause to any non-parties (physicians or medical providers) who have failed to lawfully comply with valid discovery served by Circle K Counsel consistent with authorizations executed by Ms. Black.

Ms. Black has testified to these prescriptions during her sworn deposition testimony but was unable to testify with any specificity as to the dosages or medication schedule. Having received the argument of Counsel, I find that this specific evidence would not require an in-camera inspection by the Special Magistrate as no privilege has been asserted by Ms. Black’s Counsel.

The Special Magistrate remains available to the Court and Parties pursuant to the ORDER. The Court Reporter attending the Special Magistrate hearing in this matter on August 12, 2024, at 5:00 p.m., was Meaghan Willis, Universal Court Reporting, 101 E. Kennedy Blvd., Suite 24, Tampa, FL 33602 (phone (877) 291-3376) www.ucrinc.com .