STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF ) PSYCHOLOGY, )

)

Petitioner, )

)

vs. )

)

DAVID FAUSTINO GRABAU, )

)

Respondent. )

Case No. 97-3644

)

SUPPLEMENTAL RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on February 6, 2003, in Tallahassee, Florida, before Susan B. Kirkland, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Robert C. Byerts, Esquire

Department of Health Practice Regulation--Legal 4052 Bald Cypress Way

Bin C-65

Tallahassee, Florida 32399-3265

For Respondent: Paul Sexton, Esquire

Williams, Wilson & Sexton

215 South Monroe Street Suite 600-A

Post Office Box 10109 Tallahassee, Florida 32302-2109

STATEMENT OF THE ISSUE

Whether the deposition of K.R. is admissible either pursuant to Rule 1.330(a)(3), Florida Rules of Civil Procedure, or Section 90.804(2)(a), Florida Statutes.

PRELIMINARY STATEMENT

This proceeding arises as the result of the opinion of the First District Court of Appeal in Grabau v. Department of Health, 816 So. 2d 701, (Fla. 1st DCA 2002), in which the court reversed the Final Order of the Board of Psychology and remanded the case for consideration of whether the partial deposition of

1. taken in a prior civil action was admissible under Section 90.804(2)(a), Florida Statutes, and Rule 1.330(a)(3), Florida Rules of Civil Procedure. According to the court in Grabau, if the deposition is admissible, the record is sufficient to prove the violations asserted by the Petitioner,

   Department of Health (Department), and, if not admissible, there is an absence of competent substantial evidence to support the Final Order. Grabau at 710.

   The Department remanded the case to the Division of Administrative Hearings. The hearing on the merits of the case was held by Administrative Law Judge Arnold Pollock, who is now retired. On remand, the case was assigned to Administrative Law Judge Susan B. Kirkland.

   At the final hearing on remand, the parties stipulated to the material facts pertinent to the issue in this proceeding. The Department offered Petitioner's Exhibits 1 through 3, which were admitted in evidence. Respondent, David F. Grabau, M.D. (Dr. Grabau), offered Respondent's Exhibits 1 through 3, which were admitted in evidence. Neither party called any witnesses.

   At the close of the final hearing, the parties agreed to file their proposed recommended orders within ten days of the filing of the Transcript, which was filed on February 14, 2003. Petitioner filed an Agreed Motion for Extension of Time to submit recommended orders, which was granted. The deadline for submitting proposed recommended orders was extended to

   February 28, 2003. The parties timely filed their Proposed Recommended Orders which have been considered in rendering this

   Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   1. The Department is the state agency charged with regulating the practice of psychology pursuant to Chapters 455 and 490, Florida Statutes.

   2. Dr. Grabau is and has been licensed as a psychologist in Florida and is subject to the jurisdiction of the Department.

   3. K.R. filed a civil lawsuit against Dr. Grabau and the Board of Regents of the State of Florida in federal court, case number 96-1995-CIV-T-25E.

   4. The Department filed an Administrative Complaint against Dr. Grabau on July 1, 1997, charging that in the course of treatment of and relationship with K.R., Dr. Grabau committed sexual misconduct in the practice of psychology and that his conduct fell below the minimum standard of performance in professional activities when measured against generally prevailing peer performance, violating Subsections 490.0111, 490.009(2)(k), and 490.009(2)(s), Florida Statutes. This administrative proceeding was continued and abated a number of times before the final hearing was held on January 13, 2000.

   5. K.R.'s civil lawsuit was based on the same events as the Department's Administrative Complaint filed against

      Dr. Grabau.

      
      

   6. Counsel for Dr. Grabau in the federal civil action deposed K.R. on October 16, 1996, from 9:52 a.m. to 5:29 p.m., at which time the deposition was continued, to be rescheduled at another date, but was never completed, due to the settlement of that civil action.

   7. The copy of the transcript of the deposition is true and correct.

   8. At the time of the civil action and the initial complaint to the Department, K.R. resided and worked in the Tampa Bay area. At the deposition, she provided an address in

      Lutz, Florida. She also provided a street address for her parents in Plantation, Florida.

   9. In 1998, K.R. moved to Broward County, Florida. In November of 1998, K.R. purchased a condominium in Plantation, Florida, and the deed was recorded in the official records of Broward County, Florida. During and after 1998, an online search of public records would have identified K.R.'s location in Broward County, Florida.

   10. Since 1998, K.R. has been a resident of Broward County, Florida. On January 13, 2000, the date of the final administrative hearing, K.R. was located in Broward County, Florida.

   11. Maureen Holz, Esquire, served as counsel for the Department during the course of the administrative hearing involving Dr. Grabau.

   12. During March and April 1998, efforts were made by

       
       

       Ms. Holz and Virginia Daire, then counsel for the Department, to arrange a deposition for K.R. in Tampa, Florida, prior to the administrative hearing, then set for April 15, 1998. During April 1998, Ms. Holz became aware that K.R. was residing in Broward County, Florida, and made arrangements for K.R. to fly to Tampa to testify at the final hearing.

   13. Ms. Daire attempted to locate and serve a subpoena on

       
       

       K.R. at various locations to compel her attendance at a

       deposition in Tampa, Florida, on March 27, 1998, but was unsuccessful. The returns of service of Ms. Daire's process servers stated that they could not locate K.R. at her address of record in Lutz, that K.R.'s civil attorney refused to accept service on K.R.'s behalf, contending that she was currently out of the state and that he did not know how to contact her, and that substitute service had been achieved through K.R.'s mother at a Plantation, Florida, address. However, K.R. was not residing with her parents at that time, and never received a subpoena for the deposition.

   14. After initially exploring unspecified means of contacting K.R., Ms. Holz attempted to obtain the participation of K.R. at a deposition and in the administrative hearing only by seeking the assistance of K.R.'s civil counsel. She made arrangements for K.R. to fly to Tampa for the April 15, 1998, hearing, but the final hearing was cancelled. Thereafter,

       Ms. Holz did not otherwise attempt to locate K.R. and serve her with a subpoena, contact her parents to ascertain her location, or request the state's investigator to locate her.

   15. In November of 1999, Ms. Holz received an affidavit from Kennan Dandar, stating as follows: he was counsel for K.R., the complainant in this action; he had discussed with his client the need for her testimony at deposition and at the formal hearing; and that K.R. had indicated to him that, even if

       called she will persist in her refusal to testify due to severe psychological impact in remembering the occurrences.

   16. The Department filed its Motion to Introduce Videotape as Evidence on February 5, 1999. The motion was renewed on September 15, 1999, and was granted on October 19, 1999. Both the videotape and transcript of the deposition of K.R. were admitted at final hearing on January 13, 2000.

   17. Neither the Department nor Dr. Grabau contacted K.R. directly prior to the final hearing to ascertain her willingness to attend or to arrange for her attendance in person, via videoconference, or via other means, nor did they attempt to subpoena K.R. for that hearing, and K.R. did not appear at the administrative hearing on January 13, 2000.

   18. In January 2003, K.R. was contacted by both parties at her condominium in Plantation, Florida, and later appeared voluntarily to testify at a deposition in the instant proceeding. She testified that had she been contacted directly to testify for the January 13, 2000, hearing, she would have appeared and testified. Testimony is regularly received at the Division of Administrative Hearings via videoconference, teleconference, and similar means.

   19. The October 16, 1996, deposition of K.R. was incomplete, and material areas of examination were left unexplored by counsel for Dr. Grabau due to the settlement of

       the case. These areas included, among other things, examination concerning the particulars and specific time frames relating to the alleged sexual relationship between Dr. Grabau and K.R. in comparison to the period during which he counseled her, comparison of K.R.'s testimony with police reports, and examination of the notes that K.R. took during and after the time Dr. Grabau was counseling with her. Counsel for Dr. Grabau in the civil case were not familiar with the regulatory statutes and rules at issue in the administrative proceeding, were not retained for such purposes, and were not in a position to examine K.R. in light thereof.

   20. Plantation and Fort Lauderdale, Florida, are more than

       
       

       100 miles from Tallahassee, Florida, where the final hearing was held on January 13, 2000.

       CONCLUSIONS OF LAW

       
       

   21. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Sections 120.569 and 120.57, Florida Statutes.

   22. In Grabau v. Department of Health, Board of Psychology, 816 So. 2d 701 (Fla. 1st DCA 2002), the court held that the deposition of K.R., which was admitted in evidence in the underlying administrative proceeding pursuant to

       Section 90.803(22), Florida Statutes, was not admissible because Section 90.803(22), Florida Statutes, was unconstitutional as a

       violation of Article V, Section 2(a) and Article II, Section 3, Florida Constitution. On appeal, the Department argued that K.R.'s deposition was admissible based on Section 90.804(2)(a), Florida Statutes, and Rule 1.330(a)(3), Florida Rules of Civil Procedure. The court stated: "Because the issues of 'unavailability' under section 90.804(2)(a) and rule 1.330(a)(3), and other factors governing the admissibility of the partial deposition, have not been fully addressed below, we decline to review the question for the first time on appeal." Id. at 710. The court remanded the case to the Department with directions to remand the case to the Administrative Law Judge.

   23. As the party seeking to have the deposition of K.R. admitted, the Department has the burden to show that the deposition is admissible. Webster v. Berry, 133 So. 2d 327 (Fla. 2nd DCA 1961).

   24. Rule 1.330, Florida Rules of Civil Procedure provides:

       
       

       1. Use of Depositions. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice of it so far as admissible under the rules of evidence applied as though the witness were then present and testifying in accordance with any of the following provisions:

          1. Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as

             a witness or for any purpose permitted by the Florida Evidence Code.

          2. The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or managing agent or a person designated under rule 1.310(b)(6) or 1.320(a) to testify on behalf of a public or private corporation, a partnership or association, or a governmental agency that is a party may be used by an adverse party for any purpose.

          3. The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: (A) that the witness is dead; (B) that the witness is at a greater distance than 100 miles from the place of trial or hearing, or is out of the state, unless it appears that the absence of the witness was procured by the party offering the deposition; (C) that the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment; (D) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena;

             (E) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used; or presenting the testimony of witnesses in open court, to allow the deposition to be used; or (F) the witness is an expert or skilled witness.

          4. If only part of a deposition is offered in evidence by a party, an adverse party may require the party to introduce any other part that in fairness ought to be considered with the part introduced, and any party may introduce any other parts.

          5. Substitution of parties pursuant to rule 1.260 does not affect the right to use depositions previously taken and, when an action in any court of the United States or of any state has been dismissed and another action involving the same subject matter is

             afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken and duly filed in the former action may be used in the latter as if originally taken for it.

          6. If a civil action is afterward brought, all depositions taken in a medical liability mediation proceeding may be used in the civil action as if originally taken for it.

             
             

   25. The deposition of K.R. was not taken in the administrative proceeding in which it was sought to be used, but was taken in a civil proceeding in which K.R. sued Dr. Grabau. Rule 1.330(a)(3), Florida Rules of Civil Procedure, deals principally with depositions that are sought to be used in the actions in which they were taken. In Johns-Manville Sales Corp. v. Janssens, 463 So. 2d 242, 259 (Fla. 1st DCA 1984), the court stated:

       It is highly questionable, however, that deposition testimony can be used under rule

       1.330 unless offered in the same judicial proceeding in which it was originally taken. Dinter v. Brewer, 420 So. 2d 932 (Fla. 3d DCA 1982). The scope of the rule is directed more to resolution of the problem presented when the testimony is sought to be used in a supplemental proceeding or

       retrial, or when another party is added to the proceeding after a deposition has been taken and the added party desires to use such testimony against a party represented by counsel at the deposition. Certainly rule 1.330 is not intended to supplant the "former testimony" rule now codified in the Florida Evidence Code section 90.804(2)(a), Florida Statutes (1983).

   26. In Dinter, 420 So. 2d at 934, the court opined:

       
       

       Exceptions to the rule excluding depositions as hearsay are found not only in the rules of civil procedure, but in the rules of evidence. While it is true, that when considering the admissibility of a deposition we are conditioned to look to Florida Rule of Civil Procedure 1.330, that rule merely supplies certain exceptions to the rule excluding hearsay, that is, when the deposition is to be used in the action for which it was taken, or in a proceeding supplemental to, or a retrial of that action. But when the deposition does not come within the exception provided in the civil procedure rule, we must turn to the rules of evidence in our search for an exception. These latter rules, "expand the admissibility of depositions taken in the action and in prior actions, but do not limit admissibility as provided for [in the rule of civil procedure]."

       
       

   27. Rule 1.330(a)(3), Florida Rules of Civil Procedure, does not provide a basis for the admissibility of K.R.'s deposition because K.R.'s deposition was not taken in the administrative proceeding, a supplemental proceeding to the administrative case, or a rehearing of the administrative case. However, Rule 1.330(a)(1), Florida Rules of Civil Procedure, does allow the use of any deposition for any use permitted by the Florida Evidence Code.

   28. Section 90.804, Florida Statutes, deals with the admissibility of deposition testimony taken in other proceedings and provides:

       1. DEFINITION OF UNAVAILABILITY.-- "Unavailability" as a "witness" means that the declarant:

          1. Is exempted by a ruling of a court on the ground of privilege from testifying concerning the subject matter of the declarant's statement;

          2. Persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so;

          3. Has suffered a lack of memory of the subject matter of his or her statement so as to destroy the declarant's effectiveness as a witness during the trial;

          4. Is unable to be present or to testify at the hearing because of death or because then-existing physical or mental illness or infirmity;

          5. Is absent from the hearing, and the proponent of a statement has been unable to procure the declarant's attendance or testimony by process or other reasonable means.

             
             

             However a declarant is not unavailable as a witness if such exemption, refusal, claim of lack of memory, inability to be present, or absence is due to the procurement or wrongdoing of the party who is the proponent of his or her statement in preventing the witness from attending or testifying.

       2. HEARSAY EXCEPTIONS.--The following are not excluded under s. 90.802, provided that the declarant is unavailable as a witness:

          1. Former testimony.--Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

       
       

   29. In order for deposition testimony taken in another proceeding to be admissible, the declarant must be unavailable as defined in Subsection 90.804(1), Florida Statutes. K.R. was not exempted from testifying at the final hearing by a court ruling on the ground of privilege. There was no court order requiring K.R. to testify at the final hearing; thus any refusal of K.R. to testify at the final hearing would not make her unavailable pursuant to Subsection 90.804(1)(b), Florida Statutes. There was no evidence that K.R. suffered from a lack of memory. Nor is there any evidence that K.R. was suffering from a mental or physical illness, was infirm, or was dead. The issue becomes whether the Department was unable to procure the attendance of K.R. at the final hearing by process or other reasonable means.

   30. The Department admits in its Proposed Recommended Order that "as of 1998, more than eighteen months before the hearing, Patient K.R. was readily locatable by anyone who looked for her, using information in her deposition and an online search" and argues that if Dr. Grabau had wanted to take her deposition that he could have done so prior to the final hearing. Just as Dr. Grabau could have located and deposed K.R., the Department also could have located K.R. and subpoenaed her to appear for a deposition or to testify at the final

       hearing. The Department did neither; therefore, the Department has not demonstrated that K.R. was not "unavailable as a witness" so as to meet the hearsay exception of former testimony as set forth in Section 90.804(2)(a), Florida Statutes.

   31. K.R.'s deposition is not admissible based on either Rule 1.330(a)(3), Florida Rules of Civil Procedure, or Section 90.804(2), Florida Statutes.

   32. In Grabau at 710, the Court stated:

       
       

       We, note however, that if K.R.'s deposition is found admissible under

       Section 90.904(2)(a) and Rule 1.330(a)(3), then the record evidence is sufficient to prove the violations. Although the deposition might be admissible under Section 120.569(2)(g), it is nevertheless hearsay evidence unless it would be admissible in a civil action. Because the deposition is the only evidence of

       Dr. Grabau's inappropriate behavior, there is an absence of competent substantial evidence to support the order under review unless the deposition would be admissible in a civil action pursuant to a recognized hearsay exception.

       
       

   33. Having determined that K.R.'s deposition is inadmissible, the evidence does not support a finding that Dr. Grabau is guilty of the violations as set forth in the administrative complaint.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a final order be entered finding that the deposition of K.R. is inadmissible and dismissing the Administrative Complaint against David F. Grabau, M.D.

DONE AND ENTERED this 7th day of April, 2003, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 7th day of April, 2003.

COPIES FURNISHED:

Robert C. Byerts, Esquire Department of Health Practice Regulation--Legal

4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399-3265

Paul Sexton, Esquire Williams, Wilson & Sexton

215 South Monroe Street, Suite 600-A Post Office Box 10109

Tallahassee, Florida 32302-2109

R. S. Power, Agency Clerk Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

Dr. Kaye Howerton, Executive Director Board of Psychology

Department of Health

4052 Bald Cypress Way, Bin C05 Tallahassee, Florida 32399-1701

William W. Large, General Counsel Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 97-003644

Orders for Case No: 97-003644