
    Carol KING, Petitioner, v. The LOVEABLE COMPANY, et al., Respondent.
    No. 86-1723.
    District Court of Appeal of Florida, Fifth District.
    May 7, 1987.
    
      Kimberly Sands, of Larry Sands, P.A., Daytona Beach, for petitioner.
    John N. Bogdanoff, of Haas, Boehm, Brown, Rigdon, Seacrest & Fischer, P.A., Daytona Beach, for respondent Loveable Co.
    Karel L. Averill, of Fisher, Rusher, Wer-renrath, Keiner, Wack & Dickson, Orlando, for respondent Luithlen Dye Corp.
    Randall M. Bolinger, of Smalbein, Eu-bank, Johnson, Rosier & Bussey, P.A., Orlando, for respondent Sullivan-Carson, Inc.
   UPCHURCH, Chief Judge.

Petitioner who was the plaintiff in the action below seeks a writ of certiorari to review a discovery order entered upon defendant’s motion to permit visual inspection of petitioner’s injury. The petitioner’s complaint alleged that she had purchased a black brassiere manufactured by defendant, The Loveable Company. After the first wearing she noticed that the shape of the brassiere and its straps were imprinted on her skin. The complaint also alleged that the stain is disfiguring and permanent.

Respondent The Loveable Company filed a third party action against respondent Sullivan-Carson, the manufacturer of the elastic in the subject product and Sullivan-Carson filed suit against respondent Luithlen Dye Company, the dye manufacturer.

Petitioner contests the discovery order because she contends this is a physical examination which must be conducted by a physician under Florida Rule of Civil Procedure 1.360. She also contends that the inspection is not necessary because she does not intend to exhibit the injury to the jury at trial and the same inspection can be obtained through photographs to which she has agreed to submit.

We note that the trial court was very specific in defining the conditions under which the visual inspection of petitioner was to be conducted. It was to take place in her attorney’s office; no one was to inspect the affected area other than counsel for the respective parties; the inspection could last no more than two minutes; no more of petitioner’s body was required to be exposed other than necessary to permit the inspection; counsel were required to conduct themselves with dignity; and no arguing during the inspection was to be permitted.

First we do not think this is a physical examination contemplated by Rule 1.360 and the degree and extent of disfigurement can be determined by a layperson as well as by a physician. Only the permanence or physiological consequences of the injury require an examination by an expert. In fact, the extent of damages as a consequence of any disfigurement suffered by petitioner can probably be more accurately assessed by counsel than by a physician. While petitioner contends that the visual examination is intended solely to annoy, embarass, oppress, and humiliate her, there are many legitimate reasons for counsel to wish to see the injury, ie: to consider the extent of the injury in order to advise their clients on the advisability of making an offer of settlement; or to determine if the photographs petitioner proposes to use at trial are accurate representations. (While petitioner stipulates that there will be no attempt to exhibit the injury to the jury at trial, she may not be able to prove her case if counsel for defendants do not agree to the introduction of photographs to show the condition existing at that time because petitioner contends that the injury is permanent.)

In summary we do not find that the trial judge abused his discretion under the circumstances here in view of Florida’s policy of permitting liberal discovery. Certainly the court’s order was not “arbitrary, fanciful, or unreasonable_” Canakaris v. Canakaris 382 So.2d 1197 (Fla.1980).

Writ DENIED.

DAUKSCH, J., concurs.

SHARP, J., dissents with opinion.

SHARP, Judge,

dissenting.

I would grant King’s petition for issuance of a writ of certiorari, to review a discovery order requiring her to expose stains on her breasts to the attorneys for The Loveable Company (manufacturers of an allegedly defective brassiere), Sullivan-Carson (manufacturers of the elastic material in the brassiere) and Luithlen Dye Company (manufacturers of the dye used in the brassiere). The suit below involves King’s claim for damages allegedly suffered when she purchased and wore a black brassiere which permanently left a dark outline on the part of her skin covered by the brassiere.

The court’s order granting visual inspection to counsel for the three companies provided that:

a. Only counsel for the respective parties may inspect the area of [King’s] injury.
b. The inspection is to take place at [King’s attorney’s] office at a time mutually convenient to all counsel and to [King].
c. The inspection is to last no longer than two minutes.
d. [King] is to expose only as much of her body as necessary to permit viewing by counsel.
e. Counsel shall conduct themselves with dignity during the visual inspection.
f. There shall be no arguing between counsel during the visual inspection.
g. Counsel for [the three companies] will have only one opportunity prior to trial to participate in said visual inspection.

In contrast, King had presented an alternative whereby she would:

1. submit to a physical examination by a licensed physician selected by the companies or appointed by the court, and/or permit a professional photographer, to be appointed by the court to take photographs; and
2. immediately notify the three companies of any visual changes in her condition, and at their request submit to a new physical and/or photographic examination;
3. within one week prior to trial resubmit to physical and/or photographic examination;
4. not exhibit the injury “live” at trial but rely on photographs taken at various intervals' since the disfigurement first appeared.

At this point, it is obvious to all that King naturally considers the portion of her body stained as private. Despite the trend of permissiveness in our society, King has let it be known that she considers it a serious invasion of her privacy, resulting in humiliation, embarrassment and shame, to have to “showcase” her condition “live” to a minimum of three attorneys. (The order does not limit the number of counsel for the three companies that may be present at their two minute viewing).

Florida Rule of Civil Procedure 1.360, “Physical and Mental Examination of Persons” clearly states: “[w]hen the ... physical condition ... of a party ... is in controversy, the court ... may order the party to submit to a physical ... examination by a physician.” The majority does not think this is a physical examination contemplated by rule 1.360. Indeed, neither case law nor statutory law enables a trial court to order an examination of a physical injury or condition, except by a physician.

Prior to the adoption of our discovery rules, Florida common law held that a trial court had no authority to compel the plaintiff to submit to a physical examination of any kind. See State ex rel. Carter v. Call, 64 Fla. 144, 59 So. 789 (Fla.1912); See also Union Pacific Ry. Co. v. Botsford, 141 U.S. 250, 11 S.Ct. 1000, 35 L.Ed. 734 (1891). Afterwards, statutes and rules permitting physical examination were enacted, but as with Rule 1.360, the physical examination could be conducted only by a physician. See e.g., Call, Depfer v. Walker, 123 Fla. 862, 169 So. 660 (Fla.1935). No exception for lawyers existed in prior statute or rule.

The majority apparently relies upon Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980) to justify this compelled examination of King’s breasts by opposing counsel for The Loveable Company, Sullivan-Carson, and Luithlen Dye Company. Canakaris has been cited as supporting many disparate propositions, but I’ll wager this is the most bizarre.

The majority comments that the degree and extent of the disfigurement can be determined by a lay person as well as by a physician and that “there are many legitimate reasons for counsel to wish to see the injury ...” However these reasons exist in every situation in which there is present some type of visible injury which opposing counsel feels may sway a jury to award an excessive amount in damages.

Other than harassment, embarrassment and humiliation, I cannot imagine any other purpose for this compelled examination by trial counsel. Rule 4-3.7 of the Rules Regulating the Florida Bar precludes counsel from testifying as witnesses at trial. In contrast, King’s alternative of a physical examination by a physician and photographs taken at various time intervals would produce evidence admissible at trial.

Respondents contend that based on their viewing of the petitioner’s breasts they may wish to move the trial court to require the petitioner to submit to a similar viewing by the jury. I have one word for this proposition: outrageous. A plaintiff may be required to show the jury his physical injury. However, one of the exceptions is where the “public exposure might be unnecessarily embarrassing.” See 8 Wig-more, Evidence § 2220(ii)(A) at 194 (McNaughton rev. 1961). Under such circumstances the exhibition is usually ordered to be made before expert medical witnesses, who can then testify as to the condition before the jury.

Although decisions on discovery matters are within the trial court’s discretion, discovery cannot be compelled when it is not authorized by the rules. Since there is no rule authorizing the compulsory physical examination of this petitioner’s claimed injuries or disfigurement by non-physicians, and since such a public exposure will be unnecessarily embarrassing, the trial court’s discovery order in this case departed from the essential requirements of law. Common law certiorari is a remedy available when the lower court is acting without jurisdiction or its order will constitute a departure from the essential requirements of law. Hawaiian Inn of Daytona Beach, Inc. v. Snead Construction Corporation, 393 So.2d 1201 (Fla. 5th DCA 1981); See also Powell v. Wingard, 402 So.2d 532 (Fla 5th DCA 1981). Accordingly, I would grant petitioner’s request for review and quash the discovery order. 
      
      . Florida Rule of Civil Procedure 1.360 provides:
      (a) Order for Examination. When the mental or physical condition, including the blood group, of a party or of a person in the custody or under the legal control of a party is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a physi-cían or to produce the person in his custody or legal control for examination. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions and scope of the examination and the person or persons by whom it is to be made.
     
      
      . Fla.R.App.P. 9.030(b)(2), 9.100.
     
      
      . Rule 1.360 is derived from Rule 35 of the Federal Rules of Civil Procedure which also expressly restricts a physical examination to be conducted only by a physician. Federal courts have refused to permit even the injured party’s attorney to be present at the examination, Neumerski v. Califano, 513 F.Supp. 1011 (E.D.Pa. 1981), and cases cited therein.
     
      
      . See Ch. 4719, §§ 1, 2, 3, Laws of Fla. (1899); § 3151 (Gen. Laws 1906); 1950 Common Law Rule 28; 1954 R.C.P. 1.29.
     
      
      .See also, 8 Wigmore, Evidence § 2181 at 6 (McNaughton rev. 1961) which states: A counsel or attorney ... should not appear as witness except in unavoidable necessity because (among other reasons) of the danger which this practice would involve of a loss of public confidence in the integrity of the profession."
     
      
      . National Convenience Stores, Inc. v. Embrey, 375 So.2d 358 (Fla. 4th DCA 1979); Raulerson v. Finney, 280 So.2d 484 (Fia. 3rd DCA 1973).
     