Discovery of Defendant's Blood Sample In Wrongful Death
     The  2nd District, in Jessica Wicky v. Crisanto Oxonian, (Fla. 2nd DCA, Case No. 2D08-2853, Opinion filed August 7, 2009), has determined that a request to test a blood sample that had been obtained from an opposing party in a civil action must be brought pursuant to Florida Rules of Civil Procedure 1.360 (Examination of the Person).
     In this case, the Plaintiff decedent was killed in an accident in which the Petitioner, Jessica Wicky, was driving.  Ms. Wicky was asked to give a sample of her blood to be analyzed for alcohol content and the presence of controlled or chemical substances, and no alcohol or controlled substances were noted in the blood sample.  As a result, no charged were filed by the State in connection with the accident.  There remained a small sample of blood that had not been tested and which was in the possession of the Pinellas County Forensic laboratory. 
     The personal representative of the Estate of Crisanto Oxonian filed a negligence action against Ms. Wicky and during discovery sought permission to test the surviving portion of Ms. Wicky's blood for the presence of a certain cough medication, which they apparently had some indication that she either had been prescribed or had taken.
     The Circuit Court entered an Order granting the request and Ms. Wicky filed a Petition for Certiorari seeking to quash the Order based upon her representation that the taking of the small sample of blood that remained for such testing would create a material injury with no adequate remedy on appeal and as such she was entitled to certiorari with regard to this matter.
     According to Ms. Wicky, the destruction of the only remaining portion of the blood sample available, which would necessarily be caused by the Plaintiff's testing for this cough medication, would effectively leave her without any ability to defend herself should the State's Attorney seek criminal sanctions against her at a later date.
     The Appellate Court granted certiorari and noted that any request to test human bodily fluids in a civil action must satisfy the requirements of Florida Rules of Civil Procedure 1.360 and that the Plaintiff failed to offer any evidence of how the presence of prescription cough medication in the Defendant's blood at the time of the accident might relate to the Defendant's negligence.  In other words, a petitioner is required to show "good cause" as to why the testing should be ordered under Rule 1.360.
     Of course, normally, the 1.360 examination is sought and obtained by defendants in cases where plaintiffs have placed their physical and/or mental condition in at issue due to claims of injury in cases.  While the instant case was unusual in that the Plaintiff was seeking, in essence, a physical examination of the Defendant's blood, the Court did not rule that the same was impossible; it simply ruled that the provisions of Rule 1.360 must be followed and good cause must be shown at any time that an examination of a person's body or bodily fluids is desired.