Preview
Filing# 167800824 E-Filed 03/01/2023 12:42:23 PM
INTHE CIRCUIT COURT FOR THE 17TH
JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA
JOY FURER, CASE NO.: CACE-21-016578
Plaintiff,
V.
GG RE HOLLYWOOD BEACH 613 LLC,
and RELAXPRO, LLC,
Defendants.
1
PLAINTIFF'S OBJECTIONS ON DEFENDANT'S REQUEST FOR ORTHOPEDIC
EXAMINATIONS PURSUANT TO FLORIDA RULE OF CIVIL PROCEDURE 1.360
COMES NOW, Plaintiff, JOY FURER, by and through her undersigned counsel,
hereby objects to the scheduled Orthopedic Examination by Dr. Christopher J. Troiano,
MD, set for March 30,2023 at 4:00 p.m. and states:
1. Plaintiffs attorney, court reporter, and/or videographer, may attend the
examinations. See Pastore v. Cerese, 556 So. 2d 1235 (Fla.2d DCA 1990); Bartell
v. McCarrick, 498 So.2d 1378 (Fla. 4th DCA 1986); US. Security v. Cimino, 754
So.2d 697 (Fla. 2000). The Defendant should be required to arrange in advance
of the Orthopedic Examinations for an examination room sufficient to allow the
attendance of such representative (s) of the Plaintiff, to notify the examining
doctor in advance that one or more representatives of the Plaintiff will attend the
Orthopedic Examinations and to pay for any additional fee the Orthopedic
Examination Expert may attempt to extract by reason of the Plaintiff exercising
Plaintiffs legal rights to have such persons in attendance.
2. Plaintiff objects to the taking of any history and/or completion of questionnaires,
and/or interrogation/deposition including questions about the following topics:
facts and circumstances of how the accident happened relating to "fault"; when
Plaintiff hired an attorney; who referred Plaintiff to any doctor; what Plaintiff told
1
10800 Biscayne Blvd. Suite 700 Miami, FL 33161 Tel: (305)579-0008 Fax: (305)563-7055
www. danielcourtneylaw. com dc@danielcourtneylaw. com
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 03/01/2023 12:42:22 PM.****
doctors; prior accidents; when Plaintiff first complained; when Plaintiff saw a
doctor; and other like questions. Additionally, at trial the Orthopedic examiner
should be precluded from offering opinions or other assessments of whether
Plaintiff were frank, honest, credible, truthful, or not. Wasden v. Seaboard Coast
Line Railroad Co., 474 So. 2d 825 (Fla. 2d DCA 1985); Carver v. Orange County,
444 So. 2d 452 (Fla. 5th DCA 1985); Moore v. Taylor Concrete & Supply Co., Inc.,
553 So. 2d 787 (Fla. 1 DCA 1989); Nelson v. Reliance Ins. Co., 368 So. 2d 361
(Fla. 4th DCA 1978).
3. Plaintiff will not be completing any lengthy information forms upon her arrival at
the CME doctor's office. The Plaintiff will furnish the doctor with her name and
present her driver's license. Should the Orthopedic examiner doctor require any
further information in reference to the Plaintiff, the Defendant's counsel can
provide the Orthopedic examiner doctor with any of the information the
Orthopedic examiner doctor deems necessary.
4. Plaintiff is not obligated to provide medical history. The Plaintiff should not be
requested or required by the Orthopedic Examination Expert to fill out any forms
other than as may be necessary to establish the identity of Plaintiff. Further, the
examiner shall not take a medical history from the Plaintiff, be allowed to report,
opine, or testifythat Plaintiff gave the examiner an inaccurate history, or omitted
certain matters concerning Plaintiffs medical history, or that Plaintiff lied to the
examiner. Further, Defendant has had an adequate opportunity to obtain
Plaintiffs medical records and any diagnostic films, test results, medical records
and reports that the Defendant may want the Physical Examination Expert to
review.
2
10800 Biscayne Blvd. Suite 700 Miami, FL 33161 Tel: (305)579-0008 Fax: (305)563-7055
www. danielcourtneylaw. com dc@danielcourtneylaw. com
5. Plaintiff is not obligated to submit to testing, including radiographic studies other
than physical examinations in accordance with Schagrin v. Nacht, 683 So.2d 1173
(Fla.4th DCA 1996). Plaintiff is entitled to know the extent of such examinations,
including any tests the Orthopedic Examination Expert intends to perform, in
order to seek protection from the Court in providing reasonable measures to
assure such tests would not cause injury.
6. Plaintiff objects to the Orthopedic Examination doctor referring to his
examinations as "independent medical examination(s)", but shall clearly identify
to the Plaintiff, and in his reports, that he has been hired by Defendant(s) and/or
its counsel to examine the Plaintiff in defense of the claims made in the above-
styled case.
7. Plaintiff objects to the dissemination of any of the information obtained by the
Orthopedic Examination doctor to anyone other than Plaintiffs, Defendant or
Defendant's experts.
8. The Orthopedic Examination Expert must prepare a detailed written report for each
examination setting out his findings and opinions, including results of all tests
made, diagnosis and conclusions.
9. Defendant should not be allowed to have any videographer or other representative
at the examinations besides Orthopedic Examination Expert by reason of the
following:
a. An Orthopedic Examination Expert allows a minimal invasion of the right of
privacy of a Patient to allow a physical or mental examination of the Plaintiff
by a physician selected by the Defendant with respect to a physical or mental
condition in controversy per Rule 1.360 Fla.R.Civ.P.
b. There exists no authority under Rule 1.360 F.R.Civ.P., by statute, or under
3
10800 Biscayne Blvd. Suite 700 Miami, FL 33161 Tel: (305)579-0008 Fax: (305)563-7055
www. danielcourtneylaw. com dc@danielcourtneylaw. com
Florida case law to allow a videographer or other representative of the
Defendant, other than the Orthopedic Examination doctor, to attend the
Orthopedic Examination. In fact, the First District Court of Appeal in
Chavez v. J& L Drvwall, 858 So.2d 1266 (Fla. 1st DCA 2003), held that a
defense attorney could not attend an examination, emphasizing the
privacy rights of the patient.
c. Defendant should not be able to do indirectly via a videographer what it
cannot do under Chavez.
d. Plaintiff is entitled to have an attorney, interpreter, and/or other
representative attend the Orthopedic Examinations because of the
recognized adversarial nature of an Orthopedic Examination and the need
No
to protect the rights of the patient (Plaintiff). concomitant need exists
for the party hiring the Orthopedic Examination doctor who is performing
the examinations on behalf of the Defendant as the expert witness agent
of the Defendant.
e. Under HIPAA, the Federal Government has recognized the sanctity of a
patient's rights to privacy with respect to medical and psychological
matters and records, and only under limited, necessary, carefully
circumscribed circumstances justifying intrusion of that right is a third
party allowed to invade an individual's right to privacy on a limited basis.
f. The privacy of the examinee, not the examiner, is the issue, and therefore
the Defendant has no need or right to record the Orthopedic Examinations
by any means or to have a videographer, court reporter attorney, or other
representative present besides the examining doctor at an Orthopedic
4
10800 Biscayne Blvd. Suite 700 Miami, FL 33161 Tel: (305)579-0008 Fax: (305)563-7055
www. danielcourtneylaw. com dc@danielcourtneylaw. com
Examination conducted by the very medical expert it hired who will have
first-hand knowledge of the examinations conducted by him, author
written reports to Defendant's counsel and be able to consult with
Defendant's counsel with respect to the examinations as a specially hired,
professional expert witness. See Stakley v. Allstate Ins. Co., 547 So.2d 275
(Fla.2d DCA 1989); Prince v. Mallari, 36 So.3d 128 (Fla.5th DCA 2010).
10. A reasonable time cut-off should be established setting forth that the report must
be completed within seven (7) days of the examinations and Plaintiffs counsel
must receive a copy within fourteen (14) days of the examinations.
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing was filed via
the Florida Courts E-filing E-portal on to: Amanda N. Rumker, Esq., John J. Glenn,
Esq., ANDERSONGLENN LLP, 2650 North Military Trail, Suite 430, Boca Raton, Florida
33341 at arumker@asglaw.com; andjglenn@asglaw.com, (Counsel for GG RE Hollywood
Beach 613 LLC) and Alicia M. Corbo, Esq., Eric C. Sage, Esq., Mitrani, Rynor, Adamsky
& Toland, P.A., 1200 Weston Road, Penthouse, Weston, Florida 33326 at
acorbo@mitrani.com; and esage@mitrani.com, (Counsel for Relaxpro, LLC) on this
St
1
day of March, 2023.
DANIEL W. COURTNEY, P.A
10800 Biscayne Blvd.
Suite 700
Miami, Florida 33161
Telephone: (305) 579-0008
Facsimile: (305) 563-7055
By: s / Daniel W. Courtney
Daniel W. Courtney
Florida Bar No: 0499781
dc@danielcourtneylaw.com
5
10800 Biscayne Blvd. Suite 700 Miami, FL 33161 Tel: (305)579-0008 Fax: (305)563-7055
www. danielcourtneylaw. com dc@danielcourtneylaw. com
Preview
Filing# 167800824 E-Filed 03/01/2023 12:42:23 PM INTHE CIRCUIT COURT FOR THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA JOY FURER, CASE NO.: CACE-21-016578 Plaintiff, V. GG RE HOLLYWOOD BEACH 613 LLC, and RELAXPRO, LLC, Defendants. 1 PLAINTIFF'S OBJECTIONS ON DEFENDANT'S REQUEST FOR ORTHOPEDIC EXAMINATIONS PURSUANT TO FLORIDA RULE OF CIVIL PROCEDURE 1.360 COMES NOW, Plaintiff, JOY FURER, by and through her undersigned counsel, hereby objects to the scheduled Orthopedic Examination by Dr. Christopher J. Troiano, MD, set for March 30,2023 at 4:00 p.m. and states: 1. Plaintiffs attorney, court reporter, and/or videographer, may attend the examinations. See Pastore v. Cerese, 556 So. 2d 1235 (Fla.2d DCA 1990); Bartell v. McCarrick, 498 So.2d 1378 (Fla. 4th DCA 1986); US. Security v. Cimino, 754 So.2d 697 (Fla. 2000). The Defendant should be required to arrange in advance of the Orthopedic Examinations for an examination room sufficient to allow the attendance of such representative (s) of the Plaintiff, to notify the examining doctor in advance that one or more representatives of the Plaintiff will attend the Orthopedic Examinations and to pay for any additional fee the Orthopedic Examination Expert may attempt to extract by reason of the Plaintiff exercising Plaintiffs legal rights to have such persons in attendance. 2. Plaintiff objects to the taking of any history and/or completion of questionnaires, and/or interrogation/deposition including questions about the following topics: facts and circumstances of how the accident happened relating to "fault"; when Plaintiff hired an attorney; who referred Plaintiff to any doctor; what Plaintiff told 1 10800 Biscayne Blvd. Suite 700 Miami, FL 33161 Tel: (305)579-0008 Fax: (305)563-7055 www. danielcourtneylaw. com dc@danielcourtneylaw. com *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 03/01/2023 12:42:22 PM.**** doctors; prior accidents; when Plaintiff first complained; when Plaintiff saw a doctor; and other like questions. Additionally, at trial the Orthopedic examiner should be precluded from offering opinions or other assessments of whether Plaintiff were frank, honest, credible, truthful, or not. Wasden v. Seaboard Coast Line Railroad Co., 474 So. 2d 825 (Fla. 2d DCA 1985); Carver v. Orange County, 444 So. 2d 452 (Fla. 5th DCA 1985); Moore v. Taylor Concrete & Supply Co., Inc., 553 So. 2d 787 (Fla. 1 DCA 1989); Nelson v. Reliance Ins. Co., 368 So. 2d 361 (Fla. 4th DCA 1978). 3. Plaintiff will not be completing any lengthy information forms upon her arrival at the CME doctor's office. The Plaintiff will furnish the doctor with her name and present her driver's license. Should the Orthopedic examiner doctor require any further information in reference to the Plaintiff, the Defendant's counsel can provide the Orthopedic examiner doctor with any of the information the Orthopedic examiner doctor deems necessary. 4. Plaintiff is not obligated to provide medical history. The Plaintiff should not be requested or required by the Orthopedic Examination Expert to fill out any forms other than as may be necessary to establish the identity of Plaintiff. Further, the examiner shall not take a medical history from the Plaintiff, be allowed to report, opine, or testifythat Plaintiff gave the examiner an inaccurate history, or omitted certain matters concerning Plaintiffs medical history, or that Plaintiff lied to the examiner. Further, Defendant has had an adequate opportunity to obtain Plaintiffs medical records and any diagnostic films, test results, medical records and reports that the Defendant may want the Physical Examination Expert to review. 2 10800 Biscayne Blvd. Suite 700 Miami, FL 33161 Tel: (305)579-0008 Fax: (305)563-7055 www. danielcourtneylaw. com dc@danielcourtneylaw. com 5. Plaintiff is not obligated to submit to testing, including radiographic studies other than physical examinations in accordance with Schagrin v. Nacht, 683 So.2d 1173 (Fla.4th DCA 1996). Plaintiff is entitled to know the extent of such examinations, including any tests the Orthopedic Examination Expert intends to perform, in order to seek protection from the Court in providing reasonable measures to assure such tests would not cause injury. 6. Plaintiff objects to the Orthopedic Examination doctor referring to his examinations as "independent medical examination(s)", but shall clearly identify to the Plaintiff, and in his reports, that he has been hired by Defendant(s) and/or its counsel to examine the Plaintiff in defense of the claims made in the above- styled case. 7. Plaintiff objects to the dissemination of any of the information obtained by the Orthopedic Examination doctor to anyone other than Plaintiffs, Defendant or Defendant's experts. 8. The Orthopedic Examination Expert must prepare a detailed written report for each examination setting out his findings and opinions, including results of all tests made, diagnosis and conclusions. 9. Defendant should not be allowed to have any videographer or other representative at the examinations besides Orthopedic Examination Expert by reason of the following: a. An Orthopedic Examination Expert allows a minimal invasion of the right of privacy of a Patient to allow a physical or mental examination of the Plaintiff by a physician selected by the Defendant with respect to a physical or mental condition in controversy per Rule 1.360 Fla.R.Civ.P. b. There exists no authority under Rule 1.360 F.R.Civ.P., by statute, or under 3 10800 Biscayne Blvd. Suite 700 Miami, FL 33161 Tel: (305)579-0008 Fax: (305)563-7055 www. danielcourtneylaw. com dc@danielcourtneylaw. com Florida case law to allow a videographer or other representative of the Defendant, other than the Orthopedic Examination doctor, to attend the Orthopedic Examination. In fact, the First District Court of Appeal in Chavez v. J& L Drvwall, 858 So.2d 1266 (Fla. 1st DCA 2003), held that a defense attorney could not attend an examination, emphasizing the privacy rights of the patient. c. Defendant should not be able to do indirectly via a videographer what it cannot do under Chavez. d. Plaintiff is entitled to have an attorney, interpreter, and/or other representative attend the Orthopedic Examinations because of the recognized adversarial nature of an Orthopedic Examination and the need No to protect the rights of the patient (Plaintiff). concomitant need exists for the party hiring the Orthopedic Examination doctor who is performing the examinations on behalf of the Defendant as the expert witness agent of the Defendant. e. Under HIPAA, the Federal Government has recognized the sanctity of a patient's rights to privacy with respect to medical and psychological matters and records, and only under limited, necessary, carefully circumscribed circumstances justifying intrusion of that right is a third party allowed to invade an individual's right to privacy on a limited basis. f. The privacy of the examinee, not the examiner, is the issue, and therefore the Defendant has no need or right to record the Orthopedic Examinations by any means or to have a videographer, court reporter attorney, or other representative present besides the examining doctor at an Orthopedic 4 10800 Biscayne Blvd. Suite 700 Miami, FL 33161 Tel: (305)579-0008 Fax: (305)563-7055 www. danielcourtneylaw. com dc@danielcourtneylaw. com Examination conducted by the very medical expert it hired who will have first-hand knowledge of the examinations conducted by him, author written reports to Defendant's counsel and be able to consult with Defendant's counsel with respect to the examinations as a specially hired, professional expert witness. See Stakley v. Allstate Ins. Co., 547 So.2d 275 (Fla.2d DCA 1989); Prince v. Mallari, 36 So.3d 128 (Fla.5th DCA 2010). 10. A reasonable time cut-off should be established setting forth that the report must be completed within seven (7) days of the examinations and Plaintiffs counsel must receive a copy within fourteen (14) days of the examinations. CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing was filed via the Florida Courts E-filing E-portal on to: Amanda N. Rumker, Esq., John J. Glenn, Esq., ANDERSONGLENN LLP, 2650 North Military Trail, Suite 430, Boca Raton, Florida 33341 at arumker@asglaw.com; andjglenn@asglaw.com, (Counsel for GG RE Hollywood Beach 613 LLC) and Alicia M. Corbo, Esq., Eric C. Sage, Esq., Mitrani, Rynor, Adamsky & Toland, P.A., 1200 Weston Road, Penthouse, Weston, Florida 33326 at acorbo@mitrani.com; and esage@mitrani.com, (Counsel for Relaxpro, LLC) on this St 1 day of March, 2023. DANIEL W. COURTNEY, P.A 10800 Biscayne Blvd. Suite 700 Miami, Florida 33161 Telephone: (305) 579-0008 Facsimile: (305) 563-7055 By: s / Daniel W. Courtney Daniel W. Courtney Florida Bar No: 0499781 dc@danielcourtneylaw.com 5 10800 Biscayne Blvd. Suite 700 Miami, FL 33161 Tel: (305)579-0008 Fax: (305)563-7055 www. danielcourtneylaw. com dc@danielcourtneylaw. com