Preview
Filing# 174231952 E-Filed 05/30/2023 05:35:34 PM
IN THE CIRCUIT COURT OF THE
SEVENTEENTH JUDICIAL CIRCUIT IN
AND FOR BROWARD COUNTY,
FLORIDA
CASE NO.: CACE-21-016578
JOY FURER,
Plaintiff,
V
GG RE HOLLYWOOD BEACH 613 LLC,
and RELAXPRO, LLC,
Defendants.
i
DEFENDANT'S REPLY TO PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION
TO EXTEND CME DEADLINE OR ALTERNATIVE MOTION TO STRIKE
PLAINTIFF'S EXPERT, DR. ADAM LYNN
Defendant, GG RE HOLLYWOOD BEACH 613 LLC, pursuant to Fla. R. Civ. P. 1.460,
hereby files its Reply to Plaintiff' s Response to Defendant' s Motion to Extend CME Deadline o f
Alternative Motion to Strike Plaintiff's Expert, Dr. Adam Lynn, and states:
1. On May 11, 2023, the Court heard Defendant's Motion to Strike Plaintiff's
TreatingProviders for failure to produce Plaintiff's medical records. See Defendant's Motion to
Strike Plaintiff's Treating Providers, attached hereto as Exhibit A.
2. The Court denied the Defendant's motion and instead continued the trial of the
instant matter resettingthe trial to take place on the Court's trial docket beginning August 28,
2023, so that the partiescould complete discoveryto prepare for trial. See Court's Order of May
14, 2023, attached hereto as Exhibit B. The court also extended the deadlines including
pre-trial
the CME Deadline and Expert Disclosure Deadline to May 23,2023.
3 On May 22, 2023, Defendant moved to extend the CME Deadline and Expert
Disclosure Deadline to July 24, 2023, so that Defendant could have additional time to have
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 05/30/2023 05:35:34 PM.****
Plaintiff attend a psychologicalcompulsory medical examination ("CME") and a vocational
rehabilitation assessment with Defendants' experts, Dr. Michael Herkov and Lori A. Cowan,
respectively.
4. On May 24, 2023, Defendant files its Amended Expert Disclosure disclosing
additional expert witnesses of Dr. Michael Herkov and Lori A. Cowan. Co-Defendant RelaxPro
disclosed Dr. Michael Herkov as an expert witness on March 17, 2023, and argued for a
continuance of trial based on his inability
to complete a CME of Plaintiff without records at
Calendar Call on May 2,2023.
5. Plaintiff responded to the Defendant's Motion objecting to attending or
requiringDefendant
alternatively to pay for a first-class flightand hotel stay for Plaintiff to
attend a CME since Plaintiff has already traveled from New York to Florida for a CME with
Defendant's orthopedic surgeon expert. Plaintiff's positionis that Defendant could have had
these CMEs done months ago and should not be given more time to complete them.
6. Notwithstanding the fact that the trial was continued "for the partiesto complete
discovery"at a hearingon Defendant's Motion to Strike Plaintiff's TreatingProviders for failure
to produce records, contrary to Plaintiff's assertions,Defendant could not have completed a
psychologicalCME or vocational rehabilitation assessment of Plaintiff"months ago."
7. Startingfirst with the psychological CME, Defendant only recently received
Plaintiff's psychologicalrecords from Dr. Adam Lynn on Mav 24,2023, after even the renewed
CME and Expert Disclosure Deadline. Dr. Herkov could not complete a psychological CME of
Plaintiff without these records.
8 Importantly,it took exactly one (1) year to get these records from Dr. Adam
Lynn. On May 24,2022, Defendant filed its Notice of Production to Non-Party which included a
2
subpoena to Dr. Adam Lynn for medical records and bills. See Notice of Production to Non-
Parties,attached hereto as Exhibit C. After no objectionwas received to the subpoena to Dr.
Adam Lynn, three (3) attempts were made to serve Dr. Adam Lynn at a cost of $125.00 to
Defendant with no success. See Affidavit of Due Diligence,attached here to as Exhibit D.
9- Subsequently,on July 1, 2023, Defendant served its Third Request for Production
to Plaintiff requested an executed HIPAA form for the release of her medical records from her
New York providersincludingDr. Adam Lynn. See Defendant's Third Request for Production,
attached hereto as Exhibit E. On August 11, 2023, having not received a response to
Defendant's Third Request for Production, Defendant's Counsel followed up on the outstanding
discovery.See Email Correspondence,attached as Exhibit F.
10. The next day, on August 12, 2023, Plaintiffs Counsel filed a Motion to
Withdraw. On September 29,2023, Plaintiff's current counsel appeared in this case. Plaintiff's
current counsel produced the executed HIPAA forms on February 3,2023.
11. On February 8, 2023, a letter was mailed to Dr. Adam Lynn with the executed
HIPAA authorization seeking a copy of Plaintiff's medical records and bills. See
Correspondence, attached hereto as Exhibit G. On March 9,2023, a follow up letter was sent to
Dr. Adam Lynn regarding Plaintiff's medical records and bills. See Correspondence, attached
hereto as Exhibit H.
12. On April 4, 2023, Defendant's Counsel called Dr. Adam Lynn's office to follow
up on the request for records and left a message. On May 3,2023, Defendant's Counsel called
again on the request for records and sent a follow up email with the previously sent
correspondence and executed HIPAA form. See Email Correspondence, attached hereto as
Exhibit I. A follow up email was sent on May 4,2023. See id.
3
13. Instead of producing the psychological records, Dr. Lynn responded to
Defendant's Counsel on May 5,2023, with a list of dates that Dr. Lynn saw Plaintiff. See id.
Defendant's Counsel responded on May 8,2023, requestinga copy of Plaintiff's entire file. See
id Again, instead of producing Plaintiff's records, Dr. Lynn sent a "treatment summary"
summarizing his treatment of Plaintiff. See id.
14. That same day, Defendant's Counsel again responded and requested Plaintiff's
entire file. See id On May 16, 2023, Dr. Adam Lynn's office advised Defendant's Counsel that
it would not produce the psychologicalrecords because Plaintiff failed to date the HIPAA form
when she signed it. See id.
15. Defendant's Counsel then advised Plaintiff's Counsel of the issue and asked that
Plaintiff produce the records or advise Dr. Lynn that the records could be released. See id. After
several follow up emails about the outstandingrecords, Plaintiff produced Dr. Adam Lynn's
records on May 24,2023, after the renewed CME deadline and expert disclosure had passed.
16. Regarding the vocational rehabilitation assessment, Defendant likewise requires
records from Plaintiff's employers in order for its expert to complete a comprehensive
assessment. Defendant attempted to obtain records from Plaintiff's prior employers (as Plaintiff
has been unemployed since 7 months before the subject incident)on June 28, 2022. See
Defendant's Second Notice of Production to Non-Party, attached hereto as Exhibit J.
17. Plaintiff's Counsel filed an Objection to Defendant's Second Notice of Production
to Non-Party on June 30, 2023, precluding Defendant from serving subpoenas to any of
Plaintiff's former employers. See Plaintiff's Objection,attached hereto as Exhibit K.
18. On January 17, 2023, Defendant filed its Fourth Request for Production seeking
executed authorizations from Plaintiff for release of her employment records. See Defendant's
4
Fourth Request for Production, attached hereto as Exhibit L. Plaintiff produced the executed
authorization on February 3,2023.
19. On February 8, 2023, a request for Plaintiff's employment records and disability
records were sent to all former employers and the Social SecurityAdministration. On March 9,
2023, a second letter was sent to each. None of Plaintiff's prioremployers have produced any
employment records.
20. On May 23, 2023, the Social Security Administration advised Defendant's
Counsel that it records because Plaintiff failed to date the
could not produce Plaintiff's disability
release form and the release form changed in February 2023. Thus, the Social Security
Administration requiresa new form, which was sent to Plaintiff for execution on May 23,2023,
via another Request for Production.
21. To put it simply,Defendant's Counsel has acted diligently
in its efforts to obtain
records so that it could complete a psychological CME and vocational rehabilitation assessment
of the Plaintiff. To not permit Defendant's Counsel to complete the discovery,especiallyin light
of its diligenceand the trial continuance which was grantedfor this purpose, would be extremely
to Defendant.
prejudicial
WHEREFORE, Defendant, GG RE HOLLYWOOD BEACH 613 LLC, respectfully
requests that this Court enter an order grantingthe instant Motion and extending the deadline to
complete all CMEs to strikingDr.
July 24, 2023, or alternatively, Adam Lynn and precluded him
from testifying and any other
at trial, relief this Court deems justand proper.
DATED this 30 -?th
day of May 2023.
ANDERSONGLENN LLP
/s/ .John .J. Glenn
John J. Glenn, Esquire
5
Florida Bar No.. 957860
jglenn@asglaw.com
Amanda N. Rumker, Esquire
Florida Bar No.. 125580
arumker@asglaw. com
2650 N. MilitaryTrial,Suite 430
Boca Raton, Florida 33431
(561) 893-9192 Phone
(561) 893-9194 Fax
CounselMDefendant
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 30? day of May, 2023, I electronically filed the
foregoing document with the Clerk of the Court using Florida Court's E-FilingPortal and certify
that all counsel of record have been served via transmission of Notice of Electronic Filing
generatedby Florida Court E-FilingPortal or in some other authorized manner for those counsel
or who are not authorized
parties to receive Notices of Electronic Filing.
electronically
/s/ .John .J. Glenn
John J. Glenn, Esquire
6
EXHIBIT A
Filing# 171546597 E-Filed 04/21/2023 03:08:53 PM
IN THE CIRCUIT COURT OF THE
SEVENTEENTH JUDICIAL CIRCUIT IN
AND FOR BROWARD COUNTY,
FLORIDA
CASE NO.: CACE-21-016578
JOY FURER,
Plaintiff.
V
GG RE HOLLYWOOD BEACH 613 LLC,
and RELAXPRO, LLC,
Defendants.
i
DEFENDANT GG RE HOLLYWOOD BEACH 613 LLC'S:
MOTION TO STRIKE PLAINTIFF'S TREATING PROVIDERS
ORALTERNATIVE
MOTION TO EXCLUDE EXPERT TESTIMONY FROM PLAINTIFF'S TREATING
PROVIDERS
Defendant, GG RE HOLLYWOOD BEACH 613 LLC, by and through the undersigned
counsel, hereby moves for an order precludingPlaintiff's treatingprovidersfrom testifying
at trial,
precluding Plaintiff's treatingproviders from offeringany expert testimony at
or alternatively,
and in support thereof states:
trial,
BACKGROUND AND PROCEDURAL POSTURE
1. of negligence securityrelated to an incident that
This case involves allegations
occurred on January 5,2021, at the Defendant's premises.
2. Pursuant to this Court's Uniform Trial Order, this matter is set forjurytrial to begin
on May 8,2023, with Calendar Call set for May 1, 2023.
3 On January 2, 2023, Plaintiff filed Plaintiff's Witness List in which Plaintiff
disclosed nine (9)treatingprovidersas hybrid witnesses who Plaintiff will offer
anticipates fact
and expert testimony at the upcoming trial. that the following
Plaintiff anticipates
Specifically,
treatingproviderswill testify"that Plaintiff sustained serious injuriesas a result of the subject
incident and will offer opinions regarding Plaintiff' s diagnosis,prognosis,and future medical
care": Dr. Alan J. Dayan, Dr. Adam Lynn, Dr. Steven Horowitz, Dr. Raz Winiarsky, Dr. Hari
Gupta, Dr. Donald Heitman, Dr. Michael Green, Dr. Harold Tice, and Dr. Robert Diamond.
4. Defendant hereby seeks to strike all nine (9)treatingprovidersfrom testifying
at
the trial in this matter. Aside from Dr. Harold Tice and Dr. Robert Diamond, none o f Plaintiff' s
providershave complied with Defendant's request
treating for medical records and bills relating
to Plaintiff's medical treatment. Dr. Adam Dayan has only produced a partialresponse to
Defendant's request for records while Dr. Adam Lynn, Dr. Steven Horowitz, Dr. Raz Winiarsky,
Dr. Hari Gupta, Dr. Donald Heitman, and Dr. Michael Green have wholly failed to respond in any
way to Defendant's requests for records and bills. Additionally,none of Plaintiff's treating
providershave been made available for deposition.
5. As such, Defendant hereby requests the court strike all of Plaintiff's treating
providersprecludingthem from testifying
on any matters Defendant requests
at trial. Alternatively,
that Plaintiff's treatingproviders be precluded from providing any expert testimony at trial
includingopinionsregardingcausation,future medical care, future medical costs, reasonableness
of medical treatment administered by another medical provider,and permanency.
MEMORANDUM OF LAW
A. This Court has inherent discretion to determine the admissibilityof evidence.
6. Florida trial courts enjoy broad discretion concerning evidentiarymatters and in
of evidence. Binger
determiningthe admissibility v.
King Pest Control, 401 So. 2d 1310, 1312
(Fla.1981) (reasoningthat "ultimate control over witness disclosure problems" should be within
the "broad discretion of the trial judge" and should focus on "prejudicein the preparationand trial
2
see also LaMarr
of a lawsuit"); v. Lang, 796 So. ld 1208, 1209 (Fla.5th DCA 2001) ("A trial
court has wide discretion in determining the admissibility
of evidence, and, absent an abuse of
Even concerning
discretion,the trial court's rulingon evidentiarymatters will not be overturned.").
otherwise relevant evidence, the Court has a duty to control what evidence goes before the jury,to
simplify the issues, and to exclude evidence when the probative value of such evidence is
outweighed by the danger of unfair prejudice.See,
substantially e.g., Fla. Stat. § 90.403; Fla. R.
Civ. P. 1.200(b).
B. Defendant will be prejudiced if Plaintiff's treating providers are permitted to testify
at trial including on expert matters.
7. Defendant is entitled to know and have the opportunityto evaluate and rebut all
opinions Plaintiff intends to offer at trial with sufficient time to prepare for those opinions before
trial. See, e.g., Binger, 401 So. 2d at 1312-15 (addressingthe purpose and scope of appropriate
disclosures,cementing "the generalpolicyof full and open disclosure [. .I");
pre-trial see also .
Bainter v. League of Women Voters of Fla., 150 So. 3d 1115, 1118 (Fla.2014) ("[F]ulland fair
function of ourjusticesystem, and parties
discoveryis essential to the truth-finding and non-parties
alike must comply not only with the 'technical provisionsof the discoveryrules,'but also with
'the purpose and spirit
of those rules in both the criminal and civil Krysiak v. Dawson,
context."');
301 So. 3d 259 (Fla.4th DCA. 2020) ("Civiltrials are not the Wild West, where one side ambushes
the other at trial.... 'All the discoveryrules and the extensive efforts of partiesto discover the
other party'scase would be for naught if one side were able to wait until after the trial started to
establish key pieceso f evidence"').
8 The trial court has the authorityand discretion,upon reasonable considerations,to
exclude the testimony of a witness or evidence not previouslydisclosed to the opposing party,
when such nondisclosure would cause prejudiceand/or surprise.
particularly Binger,401 So. 2d at
3
1313-14 (holdingthat,after consideringrelevant factors,the trial court should have excluded the
testimony of an undisclosed expert witness who was not listed on the pre-trial
witness disclosure
list and only presented as a named expert four days before trial).
The Florida Supreme Court
offered the followingfactors for the trial court's consideration:
The [trialcourt's] discretionto [exclude a non-disclosed witness] must not be
exercised blindly,however, and should be guided largelyby a determination as to
whether use ofthe undisclosed witness will prejudicethe objectingparty. Prejudice
in this sense refers to the surprisein fact of the objectingparty, and it is not
dependent on the adverse nature of the testimony.Other factors which may enter
into the trial court's exercise of discretion are: (i)the objectingparty'sability to
cure the prejudiceor, similarly, his independent knowledge of the existence ofthe
witness; (ii) the callingparty's possible intentional,or bad faith,noncompliance
with the pretrial order; and (iii)the possibledisruption of the orderlyand efficient
trial of the case (or other cases).If after considering these factors,and any others
that are relevant,the trial court concludes that use of the undisclosed witness will
not substantiallyendanger the fairness of the proceeding, the pretrialorder
mandating disclosure should be modified and the witness should be allowed to
testify.
Binger, 401 So. 2d at 1314; see also Moore v. Gillett,96 So. 3d 933,943 (Fla.2d DCA 2012)
(notingBinger analysisalso appliesto instances where an expert changes their opinion at trial).
9- The full and complete disclosure o f opinionsbefore trial,
includingeach witnesses'
final opinionsand the facts and materials upon which they will rely,is crucial and requiredof the
partiesto avoid unfair surpriseand prejudice.See, e.g., Fid. Warranty Servs., Inc. v. Firstate Ins.
Holdings,Inc., 74 So. 3d 506, 512 (Fla.4th DCA 2011) (holdingwhen a lay witness testifies as
an undisclosed expert at trial,reversible error occurs based on unfair prejudiceand surprise);
Belmont v. N. Broward Hosp. Dist., 727 So. 2d 992, 994 (Fla.4th DCA 1999) (reversing
judgment
and remanding for new trial where defendant doctors surprised
and prejudicedplaintiffby
altering
their previous testimony in the middle of trial); Mce Depot, Inc. v. Miller, 584 So.2d 587,590-
91 (Fla.4th DCA 1991 ) (affirmingorder grantingnew trial on basis of surprisewhere, duringtrial,
expert witness "recanted" his opinion given during discovery).In fact,all materials that are
4
reasonablyexpected or intended for use by an expert at trial should be disclosed priorto trial. See
Northup v. Acken, 865 So. 2d 1267, 1270 (Fla.2004).
10. Here, Plaintiff disclosed nine (9) treatingproviders that she intends to have offer
but only
expert testimony at trial, two (2) of those providershave complied with Defendant's
request for records, and none of them have made themselves The lack of
available for deposition.
cooperationfrom Plaintiff's treatingprovidershas prejudicedDefendant in its preparationfor the
trial of this case, and they should not be permittedto testify.
11. should the Court not preclude
Alternatively, all of Plaintiff's treatingproviders
from testifying providersat least be limited to testifying
Defendant requests that the treating
at trial,
only as to their treatment ofPlaintiff (and only iftheyproduce the medical records relevant to their
and be precluded from testifying
treatment before they testify) on expert matters such as causation,
future medical care, future medical costs, reasonableness of medical treatment administered by
another medical provider,and permanency.
12. Although treatingphysicians can factuallytestifyto their own observations and
care, eventually the course-of-care creates expert-type opinions (diagnosis,prognosis,
assessments, and recommendations). See Gutierrez v.
Vargas, 239 So. 3d 615, 622 (Fla.2018)
("Testimony given by treatingphysiciansblurs the boundary between fact testimony and expert
testimony because treatingphysiciansand expert medical witnesses both possess 'scientific,
technical,or other specializedknowledge' which informs their testimony."). treatingphysician A
may testify
as a lay witness regardinghis observations and decisions duringtreatment of a patient,
physicianexpresses an opinion unrelated to treatment, which is based in
but once the treating
technical or specializedknowledge, that witness
scientific, is offeringexpert testimony.Wilson v.
Taser Int7,Inc.,303 Fed. Appx. 708,713; United States v. Henderson, 409 F.3d 1293 (llth Cir.
5
physicianprovided expert testimony where she expressed an opinion
2005) (holdingthat treating
on causation where the determination ofthe cause ofthe injurydid not aid in the treatment thereof).
13. Because Plaintiff's treatingphysicianshave not responded to Defendant's request
for records and have not made themselves available for deposition,
they should, at the least,each
be precluded from testifyingoutside of their personal observations and care of the Plaintiff.
Plaintiff's medical providersshould be precluded from providing opinionsregarding
Specifically,
causation, future medical care, future medical costs, reasonableness of medical treatment
administered by another medical provider,and permanency.
CONCLUSION
14. Defendant is entitled to know ofthe
the totality opinionsPlaintiffwill offer at trial,
with sufficient time to respond accordingly (and perhaps to challenge the admissibilityof the
opinions or the grounds upon which they are based).Defendant has been deprived of its rightto
providersbecause they failed to produce medical records
learn the opinionsof Plaintiff's treating
and bills describingthe medical treatment rendered to Plaintiff and failed to make themselves
available for As such,
deposition. Plaintiff's providersshould be precluded from offering
treating
any opinions,includingexpert opinions,at trial.
WHEREFORE, Defendant, GG RE HOLLYWOOD BEACH 613 LLC, respectfully
requests this Court enter an Order striking providersand precludingthem from
Plaintiff's treating
precluding Plaintiff's treatingprovidersfrom
offeringany testimony in this case, or alternatively,
regardingcausation,future medical
testifying care, future medical costs, reasonableness ofmedical
treatment administered by another medical provider,and permanency, and for such further relief
deemed justand proper.
6
DATED this 21 st
day of April,2023.
ANDERSONGLENN LLP
/s/.John .J. Glenn
John J. Glenn, Esquire
Florida Bar No.. 957860
jglenn@asglaw.com
Amanda N. Rumker, Esquire
Florida Bar No.. 125580
arumker@asglaw. com
2650 N. MilitaryTrial,Suite 430
Boca Raton, Florida 33431
(561) 893-9192 Phone
(561) 893-9194 Fax
CounselMDefendant
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on 21 st day of April, 2023, I electronically
this
I
filed the
foregoing document with the Clerk of the Court using Florida Court's E-FilingPortal and certify
that all counsel of record have been served via transmission of Notice of Electronic Filing
generatedby Florida Court E-FilingPortal or in some other authorized manner for those counsel
or partieswho are not authorized to receive electronically
Notices of Electronic Filing.
/s/.John .J. Glenn
John J. Glenn, Esquire
7
EXHIBIT B
Filing# 173092876 E-Filed 05/14/2023 07:00:07 PM
IN THE CIRCUIT COURT OF THE
SEVENTEENTH JUDICIAL CIRCUIT IN
AND FOR BROWARD COUNTY,
FLORIDA
CASE NO.: CACE-21-016578
JOY FURER,
Plaintiff,
V.
GG RE HOLLYWOOD BEACH 613 LLC,
and RELAXPRO, LLC,
Defendants.
i
ORDER ON DEFENDANT GG RE HOLLYWOOD BEACH 613 LLC' S
MOTION TO STRIKE PLAINTIFF'S TREATING PROVIDERS OR
ALTERNATIVE MOTION TO EXCLUDE EXPERT TESTIMONY FROM
PLAINTIFF'S TREATING PROVIDERS AND MOTION TO STRIKE
PLAINTIFF'S LIABILITY EXPERT, DAVID R. WARD
THIS CAUSE having come before the Court on May 11, 2023, on Defendant GG
Re Hollywood Beach 613 LLC's ("GG") Motion to Strike Plaintiff' s TreatingProviders
or Alternative Motion to Exclude Expert Testimony from Plaintiff' s TreatingProviders,
and Defendant GG Re Hollywood Beach 613 LLC' s Motion to Strike Plaintiff' s Liability
Expert,David R. Ward, and the Court having considered the motions, hearing argument
of counsel, and being otherwise fully advised in the premises, it is THEREFORE
ORDERED and ADJUDGED as follows:
The Court hereby DENIES Defendant GG's Motions to Strike. Notwithstanding,
the Court strikes this case from its May 8, 2023 Trial docket to enable the Parties to
Page 1 of 2
Case Number: CACE21016578
conduct the discovery they need to prepare the case for Trial. The case will be reset for
Trial on the Court's three-week Trial docket commencing August 28, 2023 through
September 15, 2023. Calendar Call will take place on August 21, 2023. The Court will
issue a new Trial Order that will establish new deadlines for the trial.
DONE AND ORDERED in Chambers at Broward County, Florida on 14th day of May, 2023.
C, I Ol 657:
CACE21016578 05-14-2023 6:00 PM
Hon. Keathan Frink
CIRCUIT COURT JUDGE
Signed by Keathan Frink
Electronically
Copies Furnished To:
Alicia Marie Corbo, E-mail :
acorbo@mitrani.corn
Alicia Marie Corbo, E-mail :
Alicia Marie Corbo, E-mail service@mitrani.com
:
Amanda Rumker, E-mail arumker@asglaw.corn
:
Amanda Rumker, E-mail kmoss@asglaw.corn
:
Daniel W Courtney, E-mail maria.wright@danielcourtneylaw.com
:
Daniel W Courtney, E-mail dc@danielcourtneylaw.com
:
Daniel W Courtney, E-mail nick@danielcourtneylaw.corn
:
Eric Sage, E-mail esage@mitrani.com
:
Joanne Mistrulli,E-mail: jmistrulli@asglaw.com
John Jason Glenn, E-mail KDavidowitz@asglaw.com
:
John Jason Glenn, E-mail glenn@asglaw.com
:
Rodney G Romano, E-mail tamara@matrixmediation.com
:
Scott A Orth, E-mail service@orthlawoffice.corn
:
Scott A Orth, E-mail eserviceSAO@gmail.com
:
Page 2 of 2
EXHIBIT C
Filing# 150172250 E-Filed 05/24/2022 10:20:44 AM
IN THE CIRCUITCOURT OF THE 17
,TH
JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA
CASE NO.: CACE-21-016578
JOY FURER,
Plaintiff.
V
GG RE HOLLYWOOD BEACH 613 LLC,
and RELAXPRO, LLC,
Defendants.
i
DEFENDANT GG RE HOLLYWOOD BEACH 613 LLC' S
NOTICE OF PRODUCTION FROM NON-PARTY
YOU ARE HEREBY NOTIFIED that after ten (10) days from the date of service of this
Notice, ifservice is by electronic or fifteen (15)days from the date of service,
or facsimile delivery,
if service is by mail, and if no objectionis received from any party, the undersigned will issue or
apply to the Clerk of this Court for issuance of the attached subpoenas directed to:
1. Adam Lynn, MD
2. Advanced Recovery Equipment & Supplies,LLC
3. Alan Dayan, MD
4. Anastasious Papanagnou, MD
5. Arthur Lubitz, MD
6. Brian Ginsberg, MD
7. Brooklyn Premier Orthopedics
8. City MD Urgent Care
9. City of Hollywood Fire Rescue & Beach Safety
10. Dominque Cozien, MD
11. Elaine Sklar, MD
12. Ellen Blye, MD
13. Elliott Aaron, MD
14. Jag One PhysicalTherapy
15. James Chevalier, MD
16. Land Malgorzata, MD
17. Lenox Hill Radiology
18. Marie Franco, MD
19. Memorial Regional Hospital
20. Mount Sinai West Hospital
21. Natures First LTC & Compounding
22. North Queens SurgicalCenter
23. NYEEQASC
24. Radiology Associates of Hollywood
25. Stand-up MRI ofBensonhurst
26. Stand-upMRI
DATED this 24? ith
day of May, 2022.
ANDERSONGLENN LLP
s/.John .J. Glenn
John J. Glenn, Esq.
Florida Bar No.. 957860
jglenn@asglaw.com
2650 North MilitaryTrail,Suite 430
Boca Raton, Florida 33341
Tel.: (561) 893-9192
Fax: (561) 893-9194
Attorneysfor GG RE Hollywood
Beach 613 LLC
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 24th day of May, 2022, I electronically filed the
foregoing document with the Clerk of the Court using Florida Court's E-Filing Portal and certify
that all counsel of record have been served via transmission of Notice of Electronic Filing
generatedby Florida Court E-FilingPortal or in some other authorized manner for those counsel
or who
parties are not authorized to receive Notices of Electronic Filing.
electronically
s/.John .J. Glenn
John J. Glenn, Esquire
IN THE CIRCUIT COURT OF THE 17TH
JUDICIALCIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA
CASE NUMBER: CACE-21-016578
JOY FURER,
Plaintiff.
VS.
GG RE HOLLYWOOD BEACH 613 LLC,
and RELAXPRO, LLC,
Defendants.
i
SUBPOENA DUCES TECUM FOR THE PRODUCTION OF
DOCUMENTS AND THINGS WITHOUT DEPOSITION
TO: Adam Lynn, MD
PLLC
Manhattan Psychological,
1910 Pelham Parkway South
Bronx, New York 10461
YOU ARE HEREBY COMMANDED produce without depositionand deliver to
to
AndersonGlenn LLP 2650 N. MilitaryTrail,Suite 430, Boca Raton, Florida 33431, within jifteen
(15)days from receiptof this Subpoena, copies of the followingr
ANY AND ALL medical records, psychologicalrecords, psychiatricrecords,
medical bills,doctors' reports, physicaltherapy records, hospitalrecords, x-rays,
x-ray reports, CT scans, CT scan reports, MRI scans, MRI reports, admission notes,
discharge notes, nurses' notes, patient questionnaires,records of payments of
medical bills,insurance filings,disability reports, consultation reports, color
photographs and any other records and your entire file regarding:
Patient: Joy Furer
DOB: 07/11/1977
SSN: xxx-xx-7601
You have the rightto make a legalobjectionto the production of these materials under
Rule 1.351 ofthe Florida Rules of Civil Procedure.
If you fail to comply, you may be held in contempt of Court.
CASE NUMBER: CACE-21011010
You may request reasonable costs for preparingthese documents in advance by making
written request within five (5)days.
COMPLIANCE WITH HIPAA DISCLOSURE
Defendant has complied with 45 C.F.R., Section 164.512(e)and Rule 1.351 of the Florida
Rules of Civil Procedure. Undersigned certifies that:
1. Written notice has been provided to the insurance and/or the individual's attorney for
whom the documents are sought.
2. The notice included sufficient information about the litigation and/or proceeding to
permit the individual to his/her attorney to raise an objectionto the productionof the
requesteddocuments.
3. The time to raise an objectionhas elapsed.
4. Neither the individual nor his/her attorney filed an objection to the above-listed
subpoena.
WITNESS my hand and seal on May ,2022.
ANDERSONGLENN LLP
/s/.John .J. Glenn
John J. Glenn, Esq.
Florida Bar No.. 957860
Jglenn@asglaw.com
2650 North MilitaryTrail,Suite 430
Boca Raton, Florida 33431
Tel.: (561) 893-9192
Fax: (561) 893-9194
Attorneysfor Defendant GG RE
Hollywood Beach 613 LLC
*Issued by attorney of record per Rule 1.410
For questionsregarding this Subpoena
Please contact BeverlyAdelman at (904) 273-4734
2
IN THE CIRCUIT COURT OF THE 17TH
JUDICIALCIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA
CASE NUMBER: CACE-21-016578
JOY FURER,
Plaintiff.
VS.
GG RE HOLLYWOOD BEACH 613 LLC,
and RELAXPRO, LLC,
Defendants.
i
SUBPOENA DUCES TECUM FOR THE PRODUCTION OF
DOCUMENTS AND THINGS WITHOUT DEPOSITION
TO: Advanced Recovery Equipment & Supplies,LLC
1100 Coney Island Avenue, 3rrd Floor
Brooklyn, New York 11230
YOU ARE HEREBY COMMANDED to produce without deposition and deliver to
AndersonGlenn LLP 2650 N. MilitaryTrail,Suite 430, Boca Raton, Florida 33431, within jifteen
(15) days from receiptof this Subpoena, copies of the followingr
ANY AND ALL medical records, psychological records, psychiatricrecords,
medical bills,doctors' reports, physicaltherapy records, hospitalrecords, x-rays,
x-ray reports, CT scans, CT scan reports, MRI scans, MRI reports, admission notes,
records of payments of
dischargenotes, nurses' notes, patientquestionnaires,
medical bills,insurance filings, disabilityreports, consultation reports, color
photographs and any other records and your entire file regarding:
Patient: Joy Furer
DOB: 07/11/1977
SSN: xxx-xx-7601
You have the rightto make a legalobjectionto the production of these materials under
Rule 1.351 ofthe Florida Rules of Civil Procedure.
If you fail to comply, you may be held in contempt of Court.
CASE NUMBER: CACE-21011010
You may request reasonable costs for preparingthese documents in advance by making
written request within five (5)days.
COMPLIANCE WITH HIPAA DISCLOSURE
Defendant has complied with 45 C.F.R., Section 164.512(e)and Rule 1.351 of the Florida
Rules of Civil Procedure. Undersigned certifies that:
1. Written notice has been provided to the insurance and/or the individual's attorney for
whom the documents are sought.
2. The notice included sufficient information about the litigation and/or proceeding to
permit the individual to his/her attorney to raise an objectionto the productionof the
requesteddocuments.
3. The time to raise an objectionhas elapsed.
4. Neither the individual nor his/her attorney filed an objection to the above-listed
Preview
Filing# 174231952 E-Filed 05/30/2023 05:35:34 PM IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO.: CACE-21-016578 JOY FURER, Plaintiff, V GG RE HOLLYWOOD BEACH 613 LLC, and RELAXPRO, LLC, Defendants. i DEFENDANT'S REPLY TO PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO EXTEND CME DEADLINE OR ALTERNATIVE MOTION TO STRIKE PLAINTIFF'S EXPERT, DR. ADAM LYNN Defendant, GG RE HOLLYWOOD BEACH 613 LLC, pursuant to Fla. R. Civ. P. 1.460, hereby files its Reply to Plaintiff' s Response to Defendant' s Motion to Extend CME Deadline o f Alternative Motion to Strike Plaintiff's Expert, Dr. Adam Lynn, and states: 1. On May 11, 2023, the Court heard Defendant's Motion to Strike Plaintiff's TreatingProviders for failure to produce Plaintiff's medical records. See Defendant's Motion to Strike Plaintiff's Treating Providers, attached hereto as Exhibit A. 2. The Court denied the Defendant's motion and instead continued the trial of the instant matter resettingthe trial to take place on the Court's trial docket beginning August 28, 2023, so that the partiescould complete discoveryto prepare for trial. See Court's Order of May 14, 2023, attached hereto as Exhibit B. The court also extended the deadlines including pre-trial the CME Deadline and Expert Disclosure Deadline to May 23,2023. 3 On May 22, 2023, Defendant moved to extend the CME Deadline and Expert Disclosure Deadline to July 24, 2023, so that Defendant could have additional time to have *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 05/30/2023 05:35:34 PM.**** Plaintiff attend a psychologicalcompulsory medical examination ("CME") and a vocational rehabilitation assessment with Defendants' experts, Dr. Michael Herkov and Lori A. Cowan, respectively. 4. On May 24, 2023, Defendant files its Amended Expert Disclosure disclosing additional expert witnesses of Dr. Michael Herkov and Lori A. Cowan. Co-Defendant RelaxPro disclosed Dr. Michael Herkov as an expert witness on March 17, 2023, and argued for a continuance of trial based on his inability to complete a CME of Plaintiff without records at Calendar Call on May 2,2023. 5. Plaintiff responded to the Defendant's Motion objecting to attending or requiringDefendant alternatively to pay for a first-class flightand hotel stay for Plaintiff to attend a CME since Plaintiff has already traveled from New York to Florida for a CME with Defendant's orthopedic surgeon expert. Plaintiff's positionis that Defendant could have had these CMEs done months ago and should not be given more time to complete them. 6. Notwithstanding the fact that the trial was continued "for the partiesto complete discovery"at a hearingon Defendant's Motion to Strike Plaintiff's TreatingProviders for failure to produce records, contrary to Plaintiff's assertions,Defendant could not have completed a psychologicalCME or vocational rehabilitation assessment of Plaintiff"months ago." 7. Startingfirst with the psychological CME, Defendant only recently received Plaintiff's psychologicalrecords from Dr. Adam Lynn on Mav 24,2023, after even the renewed CME and Expert Disclosure Deadline. Dr. Herkov could not complete a psychological CME of Plaintiff without these records. 8 Importantly,it took exactly one (1) year to get these records from Dr. Adam Lynn. On May 24,2022, Defendant filed its Notice of Production to Non-Party which included a 2 subpoena to Dr. Adam Lynn for medical records and bills. See Notice of Production to Non- Parties,attached hereto as Exhibit C. After no objectionwas received to the subpoena to Dr. Adam Lynn, three (3) attempts were made to serve Dr. Adam Lynn at a cost of $125.00 to Defendant with no success. See Affidavit of Due Diligence,attached here to as Exhibit D. 9- Subsequently,on July 1, 2023, Defendant served its Third Request for Production to Plaintiff requested an executed HIPAA form for the release of her medical records from her New York providersincludingDr. Adam Lynn. See Defendant's Third Request for Production, attached hereto as Exhibit E. On August 11, 2023, having not received a response to Defendant's Third Request for Production, Defendant's Counsel followed up on the outstanding discovery.See Email Correspondence,attached as Exhibit F. 10. The next day, on August 12, 2023, Plaintiffs Counsel filed a Motion to Withdraw. On September 29,2023, Plaintiff's current counsel appeared in this case. Plaintiff's current counsel produced the executed HIPAA forms on February 3,2023. 11. On February 8, 2023, a letter was mailed to Dr. Adam Lynn with the executed HIPAA authorization seeking a copy of Plaintiff's medical records and bills. See Correspondence, attached hereto as Exhibit G. On March 9,2023, a follow up letter was sent to Dr. Adam Lynn regarding Plaintiff's medical records and bills. See Correspondence, attached hereto as Exhibit H. 12. On April 4, 2023, Defendant's Counsel called Dr. Adam Lynn's office to follow up on the request for records and left a message. On May 3,2023, Defendant's Counsel called again on the request for records and sent a follow up email with the previously sent correspondence and executed HIPAA form. See Email Correspondence, attached hereto as Exhibit I. A follow up email was sent on May 4,2023. See id. 3 13. Instead of producing the psychological records, Dr. Lynn responded to Defendant's Counsel on May 5,2023, with a list of dates that Dr. Lynn saw Plaintiff. See id. Defendant's Counsel responded on May 8,2023, requestinga copy of Plaintiff's entire file. See id Again, instead of producing Plaintiff's records, Dr. Lynn sent a "treatment summary" summarizing his treatment of Plaintiff. See id. 14. That same day, Defendant's Counsel again responded and requested Plaintiff's entire file. See id On May 16, 2023, Dr. Adam Lynn's office advised Defendant's Counsel that it would not produce the psychologicalrecords because Plaintiff failed to date the HIPAA form when she signed it. See id. 15. Defendant's Counsel then advised Plaintiff's Counsel of the issue and asked that Plaintiff produce the records or advise Dr. Lynn that the records could be released. See id. After several follow up emails about the outstandingrecords, Plaintiff produced Dr. Adam Lynn's records on May 24,2023, after the renewed CME deadline and expert disclosure had passed. 16. Regarding the vocational rehabilitation assessment, Defendant likewise requires records from Plaintiff's employers in order for its expert to complete a comprehensive assessment. Defendant attempted to obtain records from Plaintiff's prior employers (as Plaintiff has been unemployed since 7 months before the subject incident)on June 28, 2022. See Defendant's Second Notice of Production to Non-Party, attached hereto as Exhibit J. 17. Plaintiff's Counsel filed an Objection to Defendant's Second Notice of Production to Non-Party on June 30, 2023, precluding Defendant from serving subpoenas to any of Plaintiff's former employers. See Plaintiff's Objection,attached hereto as Exhibit K. 18. On January 17, 2023, Defendant filed its Fourth Request for Production seeking executed authorizations from Plaintiff for release of her employment records. See Defendant's 4 Fourth Request for Production, attached hereto as Exhibit L. Plaintiff produced the executed authorization on February 3,2023. 19. On February 8, 2023, a request for Plaintiff's employment records and disability records were sent to all former employers and the Social SecurityAdministration. On March 9, 2023, a second letter was sent to each. None of Plaintiff's prioremployers have produced any employment records. 20. On May 23, 2023, the Social Security Administration advised Defendant's Counsel that it records because Plaintiff failed to date the could not produce Plaintiff's disability release form and the release form changed in February 2023. Thus, the Social Security Administration requiresa new form, which was sent to Plaintiff for execution on May 23,2023, via another Request for Production. 21. To put it simply,Defendant's Counsel has acted diligently in its efforts to obtain records so that it could complete a psychological CME and vocational rehabilitation assessment of the Plaintiff. To not permit Defendant's Counsel to complete the discovery,especiallyin light of its diligenceand the trial continuance which was grantedfor this purpose, would be extremely to Defendant. prejudicial WHEREFORE, Defendant, GG RE HOLLYWOOD BEACH 613 LLC, respectfully requests that this Court enter an order grantingthe instant Motion and extending the deadline to complete all CMEs to strikingDr. July 24, 2023, or alternatively, Adam Lynn and precluded him from testifying and any other at trial, relief this Court deems justand proper. DATED this 30 -?th day of May 2023. ANDERSONGLENN LLP /s/ .John .J. Glenn John J. Glenn, Esquire 5 Florida Bar No.. 957860 jglenn@asglaw.com Amanda N. Rumker, Esquire Florida Bar No.. 125580 arumker@asglaw. com 2650 N. MilitaryTrial,Suite 430 Boca Raton, Florida 33431 (561) 893-9192 Phone (561) 893-9194 Fax CounselMDefendant CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 30? day of May, 2023, I electronically filed the foregoing document with the Clerk of the Court using Florida Court's E-FilingPortal and certify that all counsel of record have been served via transmission of Notice of Electronic Filing generatedby Florida Court E-FilingPortal or in some other authorized manner for those counsel or who are not authorized parties to receive Notices of Electronic Filing. electronically /s/ .John .J. Glenn John J. Glenn, Esquire 6 EXHIBIT A Filing# 171546597 E-Filed 04/21/2023 03:08:53 PM IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO.: CACE-21-016578 JOY FURER, Plaintiff. V GG RE HOLLYWOOD BEACH 613 LLC, and RELAXPRO, LLC, Defendants. i DEFENDANT GG RE HOLLYWOOD BEACH 613 LLC'S: MOTION TO STRIKE PLAINTIFF'S TREATING PROVIDERS ORALTERNATIVE MOTION TO EXCLUDE EXPERT TESTIMONY FROM PLAINTIFF'S TREATING PROVIDERS Defendant, GG RE HOLLYWOOD BEACH 613 LLC, by and through the undersigned counsel, hereby moves for an order precludingPlaintiff's treatingprovidersfrom testifying at trial, precluding Plaintiff's treatingproviders from offeringany expert testimony at or alternatively, and in support thereof states: trial, BACKGROUND AND PROCEDURAL POSTURE 1. of negligence securityrelated to an incident that This case involves allegations occurred on January 5,2021, at the Defendant's premises. 2. Pursuant to this Court's Uniform Trial Order, this matter is set forjurytrial to begin on May 8,2023, with Calendar Call set for May 1, 2023. 3 On January 2, 2023, Plaintiff filed Plaintiff's Witness List in which Plaintiff disclosed nine (9)treatingprovidersas hybrid witnesses who Plaintiff will offer anticipates fact and expert testimony at the upcoming trial. that the following Plaintiff anticipates Specifically, treatingproviderswill testify"that Plaintiff sustained serious injuriesas a result of the subject incident and will offer opinions regarding Plaintiff' s diagnosis,prognosis,and future medical care": Dr. Alan J. Dayan, Dr. Adam Lynn, Dr. Steven Horowitz, Dr. Raz Winiarsky, Dr. Hari Gupta, Dr. Donald Heitman, Dr. Michael Green, Dr. Harold Tice, and Dr. Robert Diamond. 4. Defendant hereby seeks to strike all nine (9)treatingprovidersfrom testifying at the trial in this matter. Aside from Dr. Harold Tice and Dr. Robert Diamond, none o f Plaintiff' s providershave complied with Defendant's request treating for medical records and bills relating to Plaintiff's medical treatment. Dr. Adam Dayan has only produced a partialresponse to Defendant's request for records while Dr. Adam Lynn, Dr. Steven Horowitz, Dr. Raz Winiarsky, Dr. Hari Gupta, Dr. Donald Heitman, and Dr. Michael Green have wholly failed to respond in any way to Defendant's requests for records and bills. Additionally,none of Plaintiff's treating providershave been made available for deposition. 5. As such, Defendant hereby requests the court strike all of Plaintiff's treating providersprecludingthem from testifying on any matters Defendant requests at trial. Alternatively, that Plaintiff's treatingproviders be precluded from providing any expert testimony at trial includingopinionsregardingcausation,future medical care, future medical costs, reasonableness of medical treatment administered by another medical provider,and permanency. MEMORANDUM OF LAW A. This Court has inherent discretion to determine the admissibilityof evidence. 6. Florida trial courts enjoy broad discretion concerning evidentiarymatters and in of evidence. Binger determiningthe admissibility v. King Pest Control, 401 So. 2d 1310, 1312 (Fla.1981) (reasoningthat "ultimate control over witness disclosure problems" should be within the "broad discretion of the trial judge" and should focus on "prejudicein the preparationand trial 2 see also LaMarr of a lawsuit"); v. Lang, 796 So. ld 1208, 1209 (Fla.5th DCA 2001) ("A trial court has wide discretion in determining the admissibility of evidence, and, absent an abuse of Even concerning discretion,the trial court's rulingon evidentiarymatters will not be overturned."). otherwise relevant evidence, the Court has a duty to control what evidence goes before the jury,to simplify the issues, and to exclude evidence when the probative value of such evidence is outweighed by the danger of unfair prejudice.See, substantially e.g., Fla. Stat. § 90.403; Fla. R. Civ. P. 1.200(b). B. Defendant will be prejudiced if Plaintiff's treating providers are permitted to testify at trial including on expert matters. 7. Defendant is entitled to know and have the opportunityto evaluate and rebut all opinions Plaintiff intends to offer at trial with sufficient time to prepare for those opinions before trial. See, e.g., Binger, 401 So. 2d at 1312-15 (addressingthe purpose and scope of appropriate disclosures,cementing "the generalpolicyof full and open disclosure [. .I"); pre-trial see also . Bainter v. League of Women Voters of Fla., 150 So. 3d 1115, 1118 (Fla.2014) ("[F]ulland fair function of ourjusticesystem, and parties discoveryis essential to the truth-finding and non-parties alike must comply not only with the 'technical provisionsof the discoveryrules,'but also with 'the purpose and spirit of those rules in both the criminal and civil Krysiak v. Dawson, context."'); 301 So. 3d 259 (Fla.4th DCA. 2020) ("Civiltrials are not the Wild West, where one side ambushes the other at trial.... 'All the discoveryrules and the extensive efforts of partiesto discover the other party'scase would be for naught if one side were able to wait until after the trial started to establish key pieceso f evidence"'). 8 The trial court has the authorityand discretion,upon reasonable considerations,to exclude the testimony of a witness or evidence not previouslydisclosed to the opposing party, when such nondisclosure would cause prejudiceand/or surprise. particularly Binger,401 So. 2d at 3 1313-14 (holdingthat,after consideringrelevant factors,the trial court should have excluded the testimony of an undisclosed expert witness who was not listed on the pre-trial witness disclosure list and only presented as a named expert four days before trial). The Florida Supreme Court offered the followingfactors for the trial court's consideration: The [trialcourt's] discretionto [exclude a non-disclosed witness] must not be exercised blindly,however, and should be guided largelyby a determination as to whether use ofthe undisclosed witness will prejudicethe objectingparty. Prejudice in this sense refers to the surprisein fact of the objectingparty, and it is not dependent on the adverse nature of the testimony.Other factors which may enter into the trial court's exercise of discretion are: (i)the objectingparty'sability to cure the prejudiceor, similarly, his independent knowledge of the existence ofthe witness; (ii) the callingparty's possible intentional,or bad faith,noncompliance with the pretrial order; and (iii)the possibledisruption of the orderlyand efficient trial of the case (or other cases).If after considering these factors,and any others that are relevant,the trial court concludes that use of the undisclosed witness will not substantiallyendanger the fairness of the proceeding, the pretrialorder mandating disclosure should be modified and the witness should be allowed to testify. Binger, 401 So. 2d at 1314; see also Moore v. Gillett,96 So. 3d 933,943 (Fla.2d DCA 2012) (notingBinger analysisalso appliesto instances where an expert changes their opinion at trial). 9- The full and complete disclosure o f opinionsbefore trial, includingeach witnesses' final opinionsand the facts and materials upon which they will rely,is crucial and requiredof the partiesto avoid unfair surpriseand prejudice.See, e.g., Fid. Warranty Servs., Inc. v. Firstate Ins. Holdings,Inc., 74 So. 3d 506, 512 (Fla.4th DCA 2011) (holdingwhen a lay witness testifies as an undisclosed expert at trial,reversible error occurs based on unfair prejudiceand surprise); Belmont v. N. Broward Hosp. Dist., 727 So. 2d 992, 994 (Fla.4th DCA 1999) (reversing judgment and remanding for new trial where defendant doctors surprised and prejudicedplaintiffby altering their previous testimony in the middle of trial); Mce Depot, Inc. v. Miller, 584 So.2d 587,590- 91 (Fla.4th DCA 1991 ) (affirmingorder grantingnew trial on basis of surprisewhere, duringtrial, expert witness "recanted" his opinion given during discovery).In fact,all materials that are 4 reasonablyexpected or intended for use by an expert at trial should be disclosed priorto trial. See Northup v. Acken, 865 So. 2d 1267, 1270 (Fla.2004). 10. Here, Plaintiff disclosed nine (9) treatingproviders that she intends to have offer but only expert testimony at trial, two (2) of those providershave complied with Defendant's request for records, and none of them have made themselves The lack of available for deposition. cooperationfrom Plaintiff's treatingprovidershas prejudicedDefendant in its preparationfor the trial of this case, and they should not be permittedto testify. 11. should the Court not preclude Alternatively, all of Plaintiff's treatingproviders from testifying providersat least be limited to testifying Defendant requests that the treating at trial, only as to their treatment ofPlaintiff (and only iftheyproduce the medical records relevant to their and be precluded from testifying treatment before they testify) on expert matters such as causation, future medical care, future medical costs, reasonableness of medical treatment administered by another medical provider,and permanency. 12. Although treatingphysicians can factuallytestifyto their own observations and care, eventually the course-of-care creates expert-type opinions (diagnosis,prognosis, assessments, and recommendations). See Gutierrez v. Vargas, 239 So. 3d 615, 622 (Fla.2018) ("Testimony given by treatingphysiciansblurs the boundary between fact testimony and expert testimony because treatingphysiciansand expert medical witnesses both possess 'scientific, technical,or other specializedknowledge' which informs their testimony."). treatingphysician A may testify as a lay witness regardinghis observations and decisions duringtreatment of a patient, physicianexpresses an opinion unrelated to treatment, which is based in but once the treating technical or specializedknowledge, that witness scientific, is offeringexpert testimony.Wilson v. Taser Int7,Inc.,303 Fed. Appx. 708,713; United States v. Henderson, 409 F.3d 1293 (llth Cir. 5 physicianprovided expert testimony where she expressed an opinion 2005) (holdingthat treating on causation where the determination ofthe cause ofthe injurydid not aid in the treatment thereof). 13. Because Plaintiff's treatingphysicianshave not responded to Defendant's request for records and have not made themselves available for deposition, they should, at the least,each be precluded from testifyingoutside of their personal observations and care of the Plaintiff. Plaintiff's medical providersshould be precluded from providing opinionsregarding Specifically, causation, future medical care, future medical costs, reasonableness of medical treatment administered by another medical provider,and permanency. CONCLUSION 14. Defendant is entitled to know ofthe the totality opinionsPlaintiffwill offer at trial, with sufficient time to respond accordingly (and perhaps to challenge the admissibilityof the opinions or the grounds upon which they are based).Defendant has been deprived of its rightto providersbecause they failed to produce medical records learn the opinionsof Plaintiff's treating and bills describingthe medical treatment rendered to Plaintiff and failed to make themselves available for As such, deposition. Plaintiff's providersshould be precluded from offering treating any opinions,includingexpert opinions,at trial. WHEREFORE, Defendant, GG RE HOLLYWOOD BEACH 613 LLC, respectfully requests this Court enter an Order striking providersand precludingthem from Plaintiff's treating precluding Plaintiff's treatingprovidersfrom offeringany testimony in this case, or alternatively, regardingcausation,future medical testifying care, future medical costs, reasonableness ofmedical treatment administered by another medical provider,and permanency, and for such further relief deemed justand proper. 6 DATED this 21 st day of April,2023. ANDERSONGLENN LLP /s/.John .J. Glenn John J. Glenn, Esquire Florida Bar No.. 957860 jglenn@asglaw.com Amanda N. Rumker, Esquire Florida Bar No.. 125580 arumker@asglaw. com 2650 N. MilitaryTrial,Suite 430 Boca Raton, Florida 33431 (561) 893-9192 Phone (561) 893-9194 Fax CounselMDefendant CERTIFICATE OF SERVICE I HEREBY CERTIFY that on 21 st day of April, 2023, I electronically this I filed the foregoing document with the Clerk of the Court using Florida Court's E-FilingPortal and certify that all counsel of record have been served via transmission of Notice of Electronic Filing generatedby Florida Court E-FilingPortal or in some other authorized manner for those counsel or partieswho are not authorized to receive electronically Notices of Electronic Filing. /s/.John .J. Glenn John J. Glenn, Esquire 7 EXHIBIT B Filing# 173092876 E-Filed 05/14/2023 07:00:07 PM IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO.: CACE-21-016578 JOY FURER, Plaintiff, V. GG RE HOLLYWOOD BEACH 613 LLC, and RELAXPRO, LLC, Defendants. i ORDER ON DEFENDANT GG RE HOLLYWOOD BEACH 613 LLC' S MOTION TO STRIKE PLAINTIFF'S TREATING PROVIDERS OR ALTERNATIVE MOTION TO EXCLUDE EXPERT TESTIMONY FROM PLAINTIFF'S TREATING PROVIDERS AND MOTION TO STRIKE PLAINTIFF'S LIABILITY EXPERT, DAVID R. WARD THIS CAUSE having come before the Court on May 11, 2023, on Defendant GG Re Hollywood Beach 613 LLC's ("GG") Motion to Strike Plaintiff' s TreatingProviders or Alternative Motion to Exclude Expert Testimony from Plaintiff' s TreatingProviders, and Defendant GG Re Hollywood Beach 613 LLC' s Motion to Strike Plaintiff' s Liability Expert,David R. Ward, and the Court having considered the motions, hearing argument of counsel, and being otherwise fully advised in the premises, it is THEREFORE ORDERED and ADJUDGED as follows: The Court hereby DENIES Defendant GG's Motions to Strike. Notwithstanding, the Court strikes this case from its May 8, 2023 Trial docket to enable the Parties to Page 1 of 2 Case Number: CACE21016578 conduct the discovery they need to prepare the case for Trial. The case will be reset for Trial on the Court's three-week Trial docket commencing August 28, 2023 through September 15, 2023. Calendar Call will take place on August 21, 2023. The Court will issue a new Trial Order that will establish new deadlines for the trial. DONE AND ORDERED in Chambers at Broward County, Florida on 14th day of May, 2023. C, I Ol 657: CACE21016578 05-14-2023 6:00 PM Hon. Keathan Frink CIRCUIT COURT JUDGE Signed by Keathan Frink Electronically Copies Furnished To: Alicia Marie Corbo, E-mail : acorbo@mitrani.corn Alicia Marie Corbo, E-mail : Alicia Marie Corbo, E-mail service@mitrani.com : Amanda Rumker, E-mail arumker@asglaw.corn : Amanda Rumker, E-mail kmoss@asglaw.corn : Daniel W Courtney, E-mail maria.wright@danielcourtneylaw.com : Daniel W Courtney, E-mail dc@danielcourtneylaw.com : Daniel W Courtney, E-mail nick@danielcourtneylaw.corn : Eric Sage, E-mail esage@mitrani.com : Joanne Mistrulli,E-mail: jmistrulli@asglaw.com John Jason Glenn, E-mail KDavidowitz@asglaw.com : John Jason Glenn, E-mail glenn@asglaw.com : Rodney G Romano, E-mail tamara@matrixmediation.com : Scott A Orth, E-mail service@orthlawoffice.corn : Scott A Orth, E-mail eserviceSAO@gmail.com : Page 2 of 2 EXHIBIT C Filing# 150172250 E-Filed 05/24/2022 10:20:44 AM IN THE CIRCUITCOURT OF THE 17 ,TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO.: CACE-21-016578 JOY FURER, Plaintiff. V GG RE HOLLYWOOD BEACH 613 LLC, and RELAXPRO, LLC, Defendants. i DEFENDANT GG RE HOLLYWOOD BEACH 613 LLC' S NOTICE OF PRODUCTION FROM NON-PARTY YOU ARE HEREBY NOTIFIED that after ten (10) days from the date of service of this Notice, ifservice is by electronic or fifteen (15)days from the date of service, or facsimile delivery, if service is by mail, and if no objectionis received from any party, the undersigned will issue or apply to the Clerk of this Court for issuance of the attached subpoenas directed to: 1. Adam Lynn, MD 2. Advanced Recovery Equipment & Supplies,LLC 3. Alan Dayan, MD 4. Anastasious Papanagnou, MD 5. Arthur Lubitz, MD 6. Brian Ginsberg, MD 7. Brooklyn Premier Orthopedics 8. City MD Urgent Care 9. City of Hollywood Fire Rescue & Beach Safety 10. Dominque Cozien, MD 11. Elaine Sklar, MD 12. Ellen Blye, MD 13. Elliott Aaron, MD 14. Jag One PhysicalTherapy 15. James Chevalier, MD 16. Land Malgorzata, MD 17. Lenox Hill Radiology 18. Marie Franco, MD 19. Memorial Regional Hospital 20. Mount Sinai West Hospital 21. Natures First LTC & Compounding 22. North Queens SurgicalCenter 23. NYEEQASC 24. Radiology Associates of Hollywood 25. Stand-up MRI ofBensonhurst 26. Stand-upMRI DATED this 24? ith day of May, 2022. ANDERSONGLENN LLP s/.John .J. Glenn John J. Glenn, Esq. Florida Bar No.. 957860 jglenn@asglaw.com 2650 North MilitaryTrail,Suite 430 Boca Raton, Florida 33341 Tel.: (561) 893-9192 Fax: (561) 893-9194 Attorneysfor GG RE Hollywood Beach 613 LLC CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 24th day of May, 2022, I electronically filed the foregoing document with the Clerk of the Court using Florida Court's E-Filing Portal and certify that all counsel of record have been served via transmission of Notice of Electronic Filing generatedby Florida Court E-FilingPortal or in some other authorized manner for those counsel or who parties are not authorized to receive Notices of Electronic Filing. electronically s/.John .J. Glenn John J. Glenn, Esquire IN THE CIRCUIT COURT OF THE 17TH JUDICIALCIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NUMBER: CACE-21-016578 JOY FURER, Plaintiff. VS. GG RE HOLLYWOOD BEACH 613 LLC, and RELAXPRO, LLC, Defendants. i SUBPOENA DUCES TECUM FOR THE PRODUCTION OF DOCUMENTS AND THINGS WITHOUT DEPOSITION TO: Adam Lynn, MD PLLC Manhattan Psychological, 1910 Pelham Parkway South Bronx, New York 10461 YOU ARE HEREBY COMMANDED produce without depositionand deliver to to AndersonGlenn LLP 2650 N. MilitaryTrail,Suite 430, Boca Raton, Florida 33431, within jifteen (15)days from receiptof this Subpoena, copies of the followingr ANY AND ALL medical records, psychologicalrecords, psychiatricrecords, medical bills,doctors' reports, physicaltherapy records, hospitalrecords, x-rays, x-ray reports, CT scans, CT scan reports, MRI scans, MRI reports, admission notes, discharge notes, nurses' notes, patient questionnaires,records of payments of medical bills,insurance filings,disability reports, consultation reports, color photographs and any other records and your entire file regarding: Patient: Joy Furer DOB: 07/11/1977 SSN: xxx-xx-7601 You have the rightto make a legalobjectionto the production of these materials under Rule 1.351 ofthe Florida Rules of Civil Procedure. If you fail to comply, you may be held in contempt of Court. CASE NUMBER: CACE-21011010 You may request reasonable costs for preparingthese documents in advance by making written request within five (5)days. COMPLIANCE WITH HIPAA DISCLOSURE Defendant has complied with 45 C.F.R., Section 164.512(e)and Rule 1.351 of the Florida Rules of Civil Procedure. Undersigned certifies that: 1. Written notice has been provided to the insurance and/or the individual's attorney for whom the documents are sought. 2. The notice included sufficient information about the litigation and/or proceeding to permit the individual to his/her attorney to raise an objectionto the productionof the requesteddocuments. 3. The time to raise an objectionhas elapsed. 4. Neither the individual nor his/her attorney filed an objection to the above-listed subpoena. WITNESS my hand and seal on May ,2022. ANDERSONGLENN LLP /s/.John .J. Glenn John J. Glenn, Esq. Florida Bar No.. 957860 Jglenn@asglaw.com 2650 North MilitaryTrail,Suite 430 Boca Raton, Florida 33431 Tel.: (561) 893-9192 Fax: (561) 893-9194 Attorneysfor Defendant GG RE Hollywood Beach 613 LLC *Issued by attorney of record per Rule 1.410 For questionsregarding this Subpoena Please contact BeverlyAdelman at (904) 273-4734 2 IN THE CIRCUIT COURT OF THE 17TH JUDICIALCIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NUMBER: CACE-21-016578 JOY FURER, Plaintiff. VS. GG RE HOLLYWOOD BEACH 613 LLC, and RELAXPRO, LLC, Defendants. i SUBPOENA DUCES TECUM FOR THE PRODUCTION OF DOCUMENTS AND THINGS WITHOUT DEPOSITION TO: Advanced Recovery Equipment & Supplies,LLC 1100 Coney Island Avenue, 3rrd Floor Brooklyn, New York 11230 YOU ARE HEREBY COMMANDED to produce without deposition and deliver to AndersonGlenn LLP 2650 N. MilitaryTrail,Suite 430, Boca Raton, Florida 33431, within jifteen (15) days from receiptof this Subpoena, copies of the followingr ANY AND ALL medical records, psychological records, psychiatricrecords, medical bills,doctors' reports, physicaltherapy records, hospitalrecords, x-rays, x-ray reports, CT scans, CT scan reports, MRI scans, MRI reports, admission notes, records of payments of dischargenotes, nurses' notes, patientquestionnaires, medical bills,insurance filings, disabilityreports, consultation reports, color photographs and any other records and your entire file regarding: Patient: Joy Furer DOB: 07/11/1977 SSN: xxx-xx-7601 You have the rightto make a legalobjectionto the production of these materials under Rule 1.351 ofthe Florida Rules of Civil Procedure. If you fail to comply, you may be held in contempt of Court. CASE NUMBER: CACE-21011010 You may request reasonable costs for preparingthese documents in advance by making written request within five (5)days. COMPLIANCE WITH HIPAA DISCLOSURE Defendant has complied with 45 C.F.R., Section 164.512(e)and Rule 1.351 of the Florida Rules of Civil Procedure. Undersigned certifies that: 1. Written notice has been provided to the insurance and/or the individual's attorney for whom the documents are sought. 2. The notice included sufficient information about the litigation and/or proceeding to permit the individual to his/her attorney to raise an objectionto the productionof the requesteddocuments. 3. The time to raise an objectionhas elapsed. 4. Neither the individual nor his/her attorney filed an objection to the above-listed