Preview
Filing# 158730143 E-Filed 10/06/2022 03:40:10 PM
19564.1
IN THE CIRCUIT COURT OF THE
SEVENTEENTH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA
CASE NO.: 21-010662
KRISTIN BIANCULLI,
Plaintiff,
V
PROGRESSIVE AMERICAN INSURANCE COMPANY
Defendant.
PLAINTIFF'S RESPONSE TO DEFENDANTS' EXPERT
REOUEST FOR PRODUCTION
Plaintiff,KRISTIN BIANCULLI by and through her undersigned counsel, hereby files this
Response to Defendant, PROGRESSIVE AMERICAN INSURANCE COMPANY, Expert Request for
Production with a certificate of service date of August 24,2022, as follows:
1. Plaintiff has no retained experts.
My treating physicianswill providetestimony as to the nature, extent, permanency and
cause of my reasonableness and necessity of medical
injuries, bills in the past and
future,future medical needs and costs, physicallimitations,interpretation
o f diagnostic
studies, need for surgery, history, aggravation and significanceof my physical
condition before and after the accident. The doctors will also testify with
consistently
their medical records and bills which have been produced to opposing counsel in
response to their request for production. It is suggested the defense take the treating
doctors' depositionsto determine the full extent ofthe opinions ofthe treatingdoctors.
The listed individuals have not been retained as "experts" in this case, but rather were
involved in some relevant way as Plaintiff's treatingdoctor in this matter and may
extend "expert" opinions in relation to their involvement herein based on the special
knowledge, expertiseor experience they possess. See Ryder Truck Rental, Inc. v.
Perez, 715 So. 2d 289 (Fla.3d DCA 1998);Frantz v. Golebiewski, 407 So. 2d 283 (Fla.
3d DCA 1981); Coralluzzo v. Fass, 450 So. USA
2d 858 (Fla.1984); Fittipaldi v.
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 10/06/2022 03:40:10 PM.****
Castroneves, 903 So.2d 182; Ryder Truck Rental, Inc. v. Perez, 715 So.2d 289;
Carpenter v. Alonso, 587 So.2d 572; Frantz v. Golebiewski, 407 So.2d 283;
Zuberbuhler v. 344 So.2d
Division of Administration, State Dept. of Transportation,
1304; Binger v. King Pest Control,401 So.2d 1310; Marine ExplorationCo. v. McCoy,
308 So.2d 43; Marshall v. Papineau, 132 So.2d 786; and Winn Dixie v. Miles, 616
So.2d 1108 (Fla.5th DCA 1993). Defendant is improperly attempting to circumvent
the deposition discovery opportunity of Rule 1.390 ("Depositions of Expert
Witnesses")by improperly placing the financial and administrative burden of obtaining
the discovery information it wants from Plaintiff?s treatingdoctor(s),
onto the Plaintiff
via Rule 1.350 ("Request for Production). To the extent that such discovery is
appropriate in the form propounded, Defendant is also improperly attempting to
circumvent Rule 1.280 (b) (4) (c) by improperly placing the financial burden of
obtainingthe discoveryinformation onto the Plaintiff. Plaintiff demands a Court Order
requiring"that the party seeking discovery pay the expert a reasonable fee for the time
spent in responding to discovery" and "to pay the other party a fair part ofthe fees and
expenses reasonable incurred by the latter party in obtaining the facts and opinions
from the expert."See Rule 1.280 (b)(4)(C),Fla. R. Civ. P. (2004).
deemed treatingphysicians not as experts, but rather
Florida Courts have historically
as ordinarywitnesses for purposes of trial testimony.See Fitipaldi
USA, Inc. V. Castro
Neves, 905 So.2d 182, 186 (Fla.3rd DCA 2005). As the Florida Supreme Court noted
in Coralluzzo v. Fass, treatingphysicians do not acquire or develop their information
or opinion in anticipationof litigation
of trial and are thus outside the ambit of the
Florida Rule of Civil Procedure 1.280.450 So.2d 858,859 (Fla.1984).
Requiring treatingphysiciansto abide by expert witness rules would create a chilling
effect on the patient/doctor Every treatingphysician would now be required
privilege.
to keep the sort of lists and information expected of expert witnesses which would
undoubtedly be invasive and burdensome. Treating physicians do not acquire their
expert knowledge for the purposes of litigation,
but rather simply in the course of
attemptingto make their patientswell. Frantz v. Golebiewski, 407 So. 2d 283,285
(3rd DCA 1981). Therefore, treatingphysicians should not be classified as expert
witnesses, but as ordinaryfact witnesses. Ryder Truck Rental v. Perez 715 So.2d 289,
290 (3rd DCA 1998). Unlike expert witnesses,which injectthemselves into litigation
and, by doing so, waive any rightto object to invasive discovery requests designed to
show bias; treating physiciansdo not chose to participate in but merely agree
litigation,
to treat a patientwho sought his or her services. Neurology Associates v. Progressive
American Insurance Company, 14 Fla. Law Weekly Supp. 78b, Case No. 16-2006-SC-
4381.
2. See response to #1.
3. See response to #1.
4. See response to #1.
5. See response to #1.
I HEREBY CERTIFY that a true and correct copy of the foregoinghas been furnished via email
th
this 6I day of October 2022 to:
Robert E. Paradela, Esq.
WICKER SMITH O'HARA MCCOY & FORD, P.A.
Attorneys for Progressive American Insurance Company
515 E Las Olas Blvd.
Suntrust Center, Suite 1400
Ft. Lauderdale, FL 33301
ftlcrtpleadings@wickersmith.com
SCHULER, HALVORSON, WEISSER,
ZOELLER & OVERBECK, P.A.
Attorneys for Plaintiff
Barristers Building,Suite 4-D
1615 Forum Place
West Palm Beach, FL 33401
Telephone: (561)689-8180
Facsimile: (561) 684-9683
By:-ls/ William Zoeller
WILLIAM ZOELLER
Florida Bar No: 155233
tcoffey@shw-law.com
Preview
Filing# 158730143 E-Filed 10/06/2022 03:40:10 PM 19564.1 IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO.: 21-010662 KRISTIN BIANCULLI, Plaintiff, V PROGRESSIVE AMERICAN INSURANCE COMPANY Defendant. PLAINTIFF'S RESPONSE TO DEFENDANTS' EXPERT REOUEST FOR PRODUCTION Plaintiff,KRISTIN BIANCULLI by and through her undersigned counsel, hereby files this Response to Defendant, PROGRESSIVE AMERICAN INSURANCE COMPANY, Expert Request for Production with a certificate of service date of August 24,2022, as follows: 1. Plaintiff has no retained experts. My treating physicianswill providetestimony as to the nature, extent, permanency and cause of my reasonableness and necessity of medical injuries, bills in the past and future,future medical needs and costs, physicallimitations,interpretation o f diagnostic studies, need for surgery, history, aggravation and significanceof my physical condition before and after the accident. The doctors will also testify with consistently their medical records and bills which have been produced to opposing counsel in response to their request for production. It is suggested the defense take the treating doctors' depositionsto determine the full extent ofthe opinions ofthe treatingdoctors. The listed individuals have not been retained as "experts" in this case, but rather were involved in some relevant way as Plaintiff's treatingdoctor in this matter and may extend "expert" opinions in relation to their involvement herein based on the special knowledge, expertiseor experience they possess. See Ryder Truck Rental, Inc. v. Perez, 715 So. 2d 289 (Fla.3d DCA 1998);Frantz v. Golebiewski, 407 So. 2d 283 (Fla. 3d DCA 1981); Coralluzzo v. Fass, 450 So. USA 2d 858 (Fla.1984); Fittipaldi v. *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 10/06/2022 03:40:10 PM.**** Castroneves, 903 So.2d 182; Ryder Truck Rental, Inc. v. Perez, 715 So.2d 289; Carpenter v. Alonso, 587 So.2d 572; Frantz v. Golebiewski, 407 So.2d 283; Zuberbuhler v. 344 So.2d Division of Administration, State Dept. of Transportation, 1304; Binger v. King Pest Control,401 So.2d 1310; Marine ExplorationCo. v. McCoy, 308 So.2d 43; Marshall v. Papineau, 132 So.2d 786; and Winn Dixie v. Miles, 616 So.2d 1108 (Fla.5th DCA 1993). Defendant is improperly attempting to circumvent the deposition discovery opportunity of Rule 1.390 ("Depositions of Expert Witnesses")by improperly placing the financial and administrative burden of obtaining the discovery information it wants from Plaintiff?s treatingdoctor(s), onto the Plaintiff via Rule 1.350 ("Request for Production). To the extent that such discovery is appropriate in the form propounded, Defendant is also improperly attempting to circumvent Rule 1.280 (b) (4) (c) by improperly placing the financial burden of obtainingthe discoveryinformation onto the Plaintiff. Plaintiff demands a Court Order requiring"that the party seeking discovery pay the expert a reasonable fee for the time spent in responding to discovery" and "to pay the other party a fair part ofthe fees and expenses reasonable incurred by the latter party in obtaining the facts and opinions from the expert."See Rule 1.280 (b)(4)(C),Fla. R. Civ. P. (2004). deemed treatingphysicians not as experts, but rather Florida Courts have historically as ordinarywitnesses for purposes of trial testimony.See Fitipaldi USA, Inc. V. Castro Neves, 905 So.2d 182, 186 (Fla.3rd DCA 2005). As the Florida Supreme Court noted in Coralluzzo v. Fass, treatingphysicians do not acquire or develop their information or opinion in anticipationof litigation of trial and are thus outside the ambit of the Florida Rule of Civil Procedure 1.280.450 So.2d 858,859 (Fla.1984). Requiring treatingphysiciansto abide by expert witness rules would create a chilling effect on the patient/doctor Every treatingphysician would now be required privilege. to keep the sort of lists and information expected of expert witnesses which would undoubtedly be invasive and burdensome. Treating physicians do not acquire their expert knowledge for the purposes of litigation, but rather simply in the course of attemptingto make their patientswell. Frantz v. Golebiewski, 407 So. 2d 283,285 (3rd DCA 1981). Therefore, treatingphysicians should not be classified as expert witnesses, but as ordinaryfact witnesses. Ryder Truck Rental v. Perez 715 So.2d 289, 290 (3rd DCA 1998). Unlike expert witnesses,which injectthemselves into litigation and, by doing so, waive any rightto object to invasive discovery requests designed to show bias; treating physiciansdo not chose to participate in but merely agree litigation, to treat a patientwho sought his or her services. Neurology Associates v. Progressive American Insurance Company, 14 Fla. Law Weekly Supp. 78b, Case No. 16-2006-SC- 4381. 2. See response to #1. 3. See response to #1. 4. See response to #1. 5. See response to #1. I HEREBY CERTIFY that a true and correct copy of the foregoinghas been furnished via email th this 6I day of October 2022 to: Robert E. Paradela, Esq. WICKER SMITH O'HARA MCCOY & FORD, P.A. Attorneys for Progressive American Insurance Company 515 E Las Olas Blvd. Suntrust Center, Suite 1400 Ft. Lauderdale, FL 33301 ftlcrtpleadings@wickersmith.com SCHULER, HALVORSON, WEISSER, ZOELLER & OVERBECK, P.A. Attorneys for Plaintiff Barristers Building,Suite 4-D 1615 Forum Place West Palm Beach, FL 33401 Telephone: (561)689-8180 Facsimile: (561) 684-9683 By:-ls/ William Zoeller WILLIAM ZOELLER Florida Bar No: 155233 tcoffey@shw-law.com