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Filing # 172782579 E-Filed 05/09/2023 04:17:04 PM
IN THE CIRCUIT COURT
OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
ARACELIS DEJESUS,
Plaintiff,
vs. Case No.: 2017-CA-2703
MARCOS LOPEZ, SHERIFF OF
OSCEOLA COUNTY, IN HIS
OFFICIAL CAPACITY,
Defendant.
/
DEFENDANT SHERIFF’S MOTION TO AMEND WITNESS LIST AND
FOR LEAVE TO SUBPOENA RECORDS FROM, AND DEPOSE,
TREATING PHYSICIANS IDENTIFIED IN PLAINTIFF’S WITNESS
LIST; IN THE ALTERNATIVE, MOTION TO CONTINUE TRIAL
Defendant Marcos Lopez, in his official capacity as Sheriff of Osceola
County, Florida, by and through undersigned counsel, moves the Court for leave to
amend his trial witness list and to obtain medical records from, and to depose, two
of Plaintiff’s treating physicians, and states:
1. Trial of this matter is currently set for June 7, 2023
2. This matter grows out of execution of a search warrant on the residence
of Plaintiff DeJesus on July 23, 2015. Plaintiff contends, among other things, that
the manner of execution of the warrant (which lasted just minutes before being called
off) has caused her to suffer from Post Traumatic Stress Disorder (PTSD), ongoing
anxiety attacks, and a need for substantial past and future medical and mental health
treatment. She suffered de minimis bruising in the incident but no other physical
injury.
3. Plaintiff’s largest medical expense, by far, is a hospitalization for three
days beginning on July 30, 2019, some four years after the incident. It was
occasioned by chest pain. The total expense billed was $58,160.88.
4. It appears that records for that hospitalization contain no reference to
PTSD or this incident. However, Plaintiff’s testifying physician, Dr. Ajith Potluri,
has testified that the subject incident caused Plaintiff anxiety, generally, and thereby
caused the hospitalization.
5. However, it appears from Dr. Potluri’s records that he was unaware that
Plaintiff potentially suffers from a thyroid condition known as Graves’ Disease.1
Only her primary care physician at the time of the incident, Dr. Jose Fernandez,
appears to mention the condition in the medical records supplied to the defense in
Plaintiff’s list of problems during a visit in September 14, 2015, just two months
after the incident. Dr. Fernandez notes that, among other things, thyroid
1
Defendant sees no reference in his records to Graves’ Disease. Rather, Dr. Potluri’s
records reflect that he saw a blood test on September 15, 2015, indicating out of
range thyroid hormones, and he recommended that Plaintiff take the issue up, again
with her primary care physician. Regardless, it is evident that the thyroid hormones
were a significant medical issue at or about the time of the subject incident.
2
symptomology may cause anxiety, fast heart rate, palpitations, chest pain, chest
tightness or pressure, and nervousness.
6. Defendant has already listed both Dr. Potluri and Dr. Fernandez as
witnesses, in the “Not Likely To Be Called” section of his Second Amended Witness
List. Plaintiff has also listed those two physicians on their own witness list.
Defendant first seeks leave to amend the defense witness list to move these
physicians to the “Likely to be Called” portion of the list.
7. Defendant has medical records for Dr. Fernandez from May 16, 2012,
to October 12, 2015. Discovery has closed but Defendant wishes to subpoena Dr.
Fernandez to ensure no additional records exist. Of note, Defendant has acted
diligently, subpoenaing the records of Dr. Fernandez on June 23, 2020, and March
28, 2022. This subpoena would ensure there are no additional records, particularly
post-March 2022.
8. Defendant also seeks leave to subpoena the records of Dr. Edward
Frame. Dr. Frame is also on Plaintiff’s witness list. It is Defendant’s understanding
that Dr. Frame became, and still may be, Plaintiff’s primary care physician.
9. Plaintiff has expressed opposition to notices of production to non-party
concerning the records of Drs. Fernandez and Frame, despite the fact that they are
both listed as witnesses by Plaintiff.
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10. Defendant also wishes to depose, in advance of trial, Drs. Fernandez
and Frame so to determine what role, if any, Graves’ Disease or any other underlying
medical condition may play in her psychiatric symptoms, such as anxiety. This is
especially important given the chest pain hospitalization with such a significant
expense on July 30, 2019, with no objective connection to the incident. This is also
relevant to claims of future medical and mental health needs.
11. Although Plaintiff’s counsel has indicated an objection to these
requests to discover Plaintiff’s full medical condition, the only objection appears to
be procedural, i.e. that the above requests are out of time.2 No actual prejudice on
the merits would be caused by allowing the relief sought here in that all three
physicians – Drs. Fernandez, Frame, and Potluri -- appear on Plaintiff’s witness list.
Indeed, for Drs. Fernandez and Frame Plaintiff states:
Dr. Fernandez: Plaintiff’s primary care physician who is familiar with Ms.
DeJesus’ post incident physical and mental condition. It is anticipated that
he will testify as to the nature and extent of the injuries, treatment, causation,
and permanency of the injuries the Plaintiff sustained in the subject incident,
as well as the reason(s) for the need for treatment.
Dr. Frame: Plaintiff’s primary care physician who is familiar with Ms.
DeJesus’ post incident physical and mental condition. It is anticipated that
2
The original discovery cut off date was April 17, 2022, in anticipation of trial later
on June 13, 2022. However, trial was continued at that time for an unrelated reason
– specifically, Plaintiff’s request to take the deposition of the confidential informant
involved in the underlying investigation leading to the search warrant, and an agency
representative as to records of the informant. The discovery date was not formally
extended, even though the parties undertook to schedule and take those two
depositions.
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he will testify as to the nature and extent of the injuries, treatment, causation,
and permanency of the injuries the Plaintiff sustained in the subject incident,
as well as the reason(s) for the need for treatment.
12. Counsel have been discussing this matter since May 4, 2023, over a
month prior to trial. The Court has the authority to manage its own docket, Fasig v.
Fasig, 830 So. 2d 839, 842 (Fla. 2d DCA 2002). But, no real prejudice would be
caused to the Plaintiff. Fasig, citing Nicholson v. Nicholson, 717 So.2d 123 (Fla. 4th
DCA 1998). Plaintiff is aware of who her treating physicians have been and is
presumably aware of her Graves’ Disease diagnosis.
13. In the interests of arriving at the truth of all possible causes of Plaintiff’s
anxiety and related issues, including this incident and any underlying medical
condition, the Court should allow Defendant to obtain the requested medical records
and to take the physicians’ depositions. As noted, all three of these witnesses
(including Drs. Fernandez and Frame) are well known to Plaintiff and her counsel
already.
14. In the event scheduling is too difficult for Plaintiff’s counsel in the
nearly month remaining before trial, Defendant requests a brief continuance of trial
of sufficient length to set the depositions of Drs. Frame and Fernandez. Those
depositions could be issued via notice duces tecum for the medical records in order
to expedite matters.
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WHEREFORE, Defendant Sheriff seeks an Order of the Court allowing him
to 1) move Drs. Potluri and Fernandez to the “Likely to Call” portion of his witness
list, adding Dr. Frame to the witness list in the same section; 2) subpoena the
medical records for Plaintiff from Drs. Frame and Fernandez; and 3) granting leave
to take the depositions of Drs. Frame and Fernandez. Should it be necessary to
accommodate scheduling, Defendant requests that the Court continue trial for a
period of time sufficient to obtain the records and take the depositions described
above.
6
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 9th day of May, 2023, the foregoing is
being filed via the Florida ePortal which will also send service by electronic mail to
the following: Thomas DeLattre, Esq. and William J. Wieland, Esq.,
tom@wdjustice.com, billy@wdjustice.com and tammy@wdjustice.com, Wieland &
DeLattre, P.A., 226 Hillcrest Street, Orlando, Florida 32802 and Jacob V. Stuart,
Esq., jvs@jacobstuartlaw.com, 1601 East Amelia Street, Orlando, Florida 32803.
s/ Thomas W. Poulton
THOMAS W. POULTON, ESQ.
Florida Bar No.: 0083798
poulton@debevoisepoulton.com
MATTHEW KOZYRA, ESQ.
Florida Bar No.: 0093425
DeBEVOISE & POULTON, P.A.
kozyra@debevoisepoulton.com
Lakeview Office Park, Suite 1010
1035 S. Semoran Boulevard
Winter Park, Florida 32792
Telephone: 407-673-5000
Facsimile: 321-203-4304
Attorneys for Defendant Sheriff
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Preview
Filing # 172782579 E-Filed 05/09/2023 04:17:04 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA ARACELIS DEJESUS, Plaintiff, vs. Case No.: 2017-CA-2703 MARCOS LOPEZ, SHERIFF OF OSCEOLA COUNTY, IN HIS OFFICIAL CAPACITY, Defendant. / DEFENDANT SHERIFF’S MOTION TO AMEND WITNESS LIST AND FOR LEAVE TO SUBPOENA RECORDS FROM, AND DEPOSE, TREATING PHYSICIANS IDENTIFIED IN PLAINTIFF’S WITNESS LIST; IN THE ALTERNATIVE, MOTION TO CONTINUE TRIAL Defendant Marcos Lopez, in his official capacity as Sheriff of Osceola County, Florida, by and through undersigned counsel, moves the Court for leave to amend his trial witness list and to obtain medical records from, and to depose, two of Plaintiff’s treating physicians, and states: 1. Trial of this matter is currently set for June 7, 2023 2. This matter grows out of execution of a search warrant on the residence of Plaintiff DeJesus on July 23, 2015. Plaintiff contends, among other things, that the manner of execution of the warrant (which lasted just minutes before being called off) has caused her to suffer from Post Traumatic Stress Disorder (PTSD), ongoing anxiety attacks, and a need for substantial past and future medical and mental health treatment. She suffered de minimis bruising in the incident but no other physical injury. 3. Plaintiff’s largest medical expense, by far, is a hospitalization for three days beginning on July 30, 2019, some four years after the incident. It was occasioned by chest pain. The total expense billed was $58,160.88. 4. It appears that records for that hospitalization contain no reference to PTSD or this incident. However, Plaintiff’s testifying physician, Dr. Ajith Potluri, has testified that the subject incident caused Plaintiff anxiety, generally, and thereby caused the hospitalization. 5. However, it appears from Dr. Potluri’s records that he was unaware that Plaintiff potentially suffers from a thyroid condition known as Graves’ Disease.1 Only her primary care physician at the time of the incident, Dr. Jose Fernandez, appears to mention the condition in the medical records supplied to the defense in Plaintiff’s list of problems during a visit in September 14, 2015, just two months after the incident. Dr. Fernandez notes that, among other things, thyroid 1 Defendant sees no reference in his records to Graves’ Disease. Rather, Dr. Potluri’s records reflect that he saw a blood test on September 15, 2015, indicating out of range thyroid hormones, and he recommended that Plaintiff take the issue up, again with her primary care physician. Regardless, it is evident that the thyroid hormones were a significant medical issue at or about the time of the subject incident. 2 symptomology may cause anxiety, fast heart rate, palpitations, chest pain, chest tightness or pressure, and nervousness. 6. Defendant has already listed both Dr. Potluri and Dr. Fernandez as witnesses, in the “Not Likely To Be Called” section of his Second Amended Witness List. Plaintiff has also listed those two physicians on their own witness list. Defendant first seeks leave to amend the defense witness list to move these physicians to the “Likely to be Called” portion of the list. 7. Defendant has medical records for Dr. Fernandez from May 16, 2012, to October 12, 2015. Discovery has closed but Defendant wishes to subpoena Dr. Fernandez to ensure no additional records exist. Of note, Defendant has acted diligently, subpoenaing the records of Dr. Fernandez on June 23, 2020, and March 28, 2022. This subpoena would ensure there are no additional records, particularly post-March 2022. 8. Defendant also seeks leave to subpoena the records of Dr. Edward Frame. Dr. Frame is also on Plaintiff’s witness list. It is Defendant’s understanding that Dr. Frame became, and still may be, Plaintiff’s primary care physician. 9. Plaintiff has expressed opposition to notices of production to non-party concerning the records of Drs. Fernandez and Frame, despite the fact that they are both listed as witnesses by Plaintiff. 3 10. Defendant also wishes to depose, in advance of trial, Drs. Fernandez and Frame so to determine what role, if any, Graves’ Disease or any other underlying medical condition may play in her psychiatric symptoms, such as anxiety. This is especially important given the chest pain hospitalization with such a significant expense on July 30, 2019, with no objective connection to the incident. This is also relevant to claims of future medical and mental health needs. 11. Although Plaintiff’s counsel has indicated an objection to these requests to discover Plaintiff’s full medical condition, the only objection appears to be procedural, i.e. that the above requests are out of time.2 No actual prejudice on the merits would be caused by allowing the relief sought here in that all three physicians – Drs. Fernandez, Frame, and Potluri -- appear on Plaintiff’s witness list. Indeed, for Drs. Fernandez and Frame Plaintiff states: Dr. Fernandez: Plaintiff’s primary care physician who is familiar with Ms. DeJesus’ post incident physical and mental condition. It is anticipated that he will testify as to the nature and extent of the injuries, treatment, causation, and permanency of the injuries the Plaintiff sustained in the subject incident, as well as the reason(s) for the need for treatment. Dr. Frame: Plaintiff’s primary care physician who is familiar with Ms. DeJesus’ post incident physical and mental condition. It is anticipated that 2 The original discovery cut off date was April 17, 2022, in anticipation of trial later on June 13, 2022. However, trial was continued at that time for an unrelated reason – specifically, Plaintiff’s request to take the deposition of the confidential informant involved in the underlying investigation leading to the search warrant, and an agency representative as to records of the informant. The discovery date was not formally extended, even though the parties undertook to schedule and take those two depositions. 4 he will testify as to the nature and extent of the injuries, treatment, causation, and permanency of the injuries the Plaintiff sustained in the subject incident, as well as the reason(s) for the need for treatment. 12. Counsel have been discussing this matter since May 4, 2023, over a month prior to trial. The Court has the authority to manage its own docket, Fasig v. Fasig, 830 So. 2d 839, 842 (Fla. 2d DCA 2002). But, no real prejudice would be caused to the Plaintiff. Fasig, citing Nicholson v. Nicholson, 717 So.2d 123 (Fla. 4th DCA 1998). Plaintiff is aware of who her treating physicians have been and is presumably aware of her Graves’ Disease diagnosis. 13. In the interests of arriving at the truth of all possible causes of Plaintiff’s anxiety and related issues, including this incident and any underlying medical condition, the Court should allow Defendant to obtain the requested medical records and to take the physicians’ depositions. As noted, all three of these witnesses (including Drs. Fernandez and Frame) are well known to Plaintiff and her counsel already. 14. In the event scheduling is too difficult for Plaintiff’s counsel in the nearly month remaining before trial, Defendant requests a brief continuance of trial of sufficient length to set the depositions of Drs. Frame and Fernandez. Those depositions could be issued via notice duces tecum for the medical records in order to expedite matters. 5 WHEREFORE, Defendant Sheriff seeks an Order of the Court allowing him to 1) move Drs. Potluri and Fernandez to the “Likely to Call” portion of his witness list, adding Dr. Frame to the witness list in the same section; 2) subpoena the medical records for Plaintiff from Drs. Frame and Fernandez; and 3) granting leave to take the depositions of Drs. Frame and Fernandez. Should it be necessary to accommodate scheduling, Defendant requests that the Court continue trial for a period of time sufficient to obtain the records and take the depositions described above. 6 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 9th day of May, 2023, the foregoing is being filed via the Florida ePortal which will also send service by electronic mail to the following: Thomas DeLattre, Esq. and William J. Wieland, Esq., tom@wdjustice.com, billy@wdjustice.com and tammy@wdjustice.com, Wieland & DeLattre, P.A., 226 Hillcrest Street, Orlando, Florida 32802 and Jacob V. Stuart, Esq., jvs@jacobstuartlaw.com, 1601 East Amelia Street, Orlando, Florida 32803. s/ Thomas W. Poulton THOMAS W. POULTON, ESQ. Florida Bar No.: 0083798 poulton@debevoisepoulton.com MATTHEW KOZYRA, ESQ. Florida Bar No.: 0093425 DeBEVOISE & POULTON, P.A. kozyra@debevoisepoulton.com Lakeview Office Park, Suite 1010 1035 S. Semoran Boulevard Winter Park, Florida 32792 Telephone: 407-673-5000 Facsimile: 321-203-4304 Attorneys for Defendant Sheriff 7