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Filing # 129441660 E-Filed 06/24/2021 02:18:39 PM
IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT
IN AND FOR MARION COUNTY, FLORIDA
CIVIL DIVISION
VIRGINIA PHILLIPS
CASE NO: 2019-CA-0142
Plaintiff(s)
Vv.
DONALD LAMBERT AND DJ'S ROOT DIVISION:
SCOOTER, INC.
Defendant(s) /
NOTICE OF COMPULSORY MEDICAL EXAMINATION
Defendant(s), Donald Lambert and DJ's Root Scooter, Inc., by and through the undersigned
counsel, pursuant to Rule 1.360(a)(1), hereby requests the Plaintiff, Virginia Phillips submit to a
compulsory medical examination before the following physician at the specified time and place.
Physician: Robert Kowalski, M.D.
Location: 201 N. Magnolia Ave, Ocala, FL 34475
Date/Time: July 15, 2021 at 1:00 P.M.
As good cause of said examination, Defendant states that a controversy exists as to the
physical condition of the Plaintiff and that such examination is necessary to the proper evaluation
of the Plaintiffs claims of personal injuries. The examination will be a compulsory medical
examination of the Plaintiff concerning his complaints which give rise to the subject litigation.
The examiner shall be limited to that information reasonably necessary to conduct the
specialty-appropriate examination and evaluation of an individual, including a brief medical
history as well as present complaints. The examination is to be limited to the specific medical or
psychological conditions in controversy and unless modified by another court order, such
examination will be the only exam for the specific condition(s) or issues in controversy (without
Electronically Filed Marion Case # 19CA000142AX 06/24/2021 02:18:39 PM
(00242602.
limiting the possibility of multiple specialties). No invasive testing shall be performed without
informed consent by the Plaintiff/examinee or order of the court.
The examinee will not be required to complete any lengthy information forms upon arrival
at the examiner’s office. The examinee will furnish the doctor with name, address, and date of
birth, and responses as to how she was injured, and where and how she sustained said injuries.
There will be no questions pertaining to “fault”, when the Plaintiff hired her attorney, or what the
Plaintiff told her attorney or any investigators.
Undersigned counsel will provide the examiner with all medical records, imaging studies,
test results, and the like. Unless she has exclusive control of any original records or imaging
studies, Plaintiff shall not be required to bring anything to the exam other than valid identification
(e.g., Driver’s License, Official Florida Identification Card or government-issued Passport).
Plaintiff is permitted to have her attorney (and spouse, or parent, or other representative)
present for the examination, provided that only one of these listed non-attorney_persons may
attend. Such person(s) may unobtrusively observe the examination, unless the examiner or defense
counsel establishes a case-specific reason why such person’s presence would be disruptive, and
that no other qualified individual in the area would be willing to conduct the examination with
such person present. Jn the case of a neuropsychological exam, all observers shall watch and
listen from an adjacent room if available, or by video feed. If the examination is to be recorded
or observed by others, the request or response of the examinee’s attorney shall include the number
of people attending, their role, and the method(s) of recording.
Plaintiff's counsel may also send a court reporter or a videographer to the examination,
provided that claimant’s counsel notifies defense counsel at least 10 days in advance of the identity,
(00242602.
either by proper name or by title (e.g., videographer from XYZ Reporting Service). It is the duty
of defense counsel to relay this information to the examiner’s office personnel.
Undersigned counsel will not attend, observe, or record the examination. If a videotape or
digital recording is made of the examination by counsel for Plaintiff, it is considered work product,
and neither the defense nor the examiner is entitled to a copy, unless and until same is designated
as (or reasonably expected to become) trial evidence, subject to discovery only upon a showing of
need and undue hardship. Use of the video or DVD is limited specifically to the instant litigation.
Only if the video is identified as impeachment material for use at trial will defense counsel request
a copy of Plaintiff's video, should one be taken. At the close of litigation, including any appeal,
all copies shall be destroyed — unless counsel convinces the court (and an order is entered) that
there is some compelling reason for either party, or the examiner, to retain a copy. The medical
examiner shall not be entitled to any payment of an additional or accommodation fee from the
Plaintiff or her counsel, simply because of the presence of a legally permitted third parties. The
court shall reserve ruling as to whether such costs, if imposed by an examiner, may be properly
recoverable by the Defendant as a taxable cost, or otherwise awarded by the court.
Neither Plaintiff's counsel, nor anyone else permitted to be present, shall interject
themselves into the examination unless the examiner questions Plaintiff in a manner specifically
proscribed above. If Plaintiff’s counsel speaks openly or confers privately with the examinee, and
this disrupts the exam or causes the examiner to terminate the examination, counsel may be subject
to sanctions.
The report of the examiner shall be sent to Plaintiffs counsel, as required by Rule 1.360(b),
within 30 days of the examination — but in no event less than 21 days before the beginning of trial,
unless otherwise agreed between counsel for the parties or ordered by the court due to special
(00242602.
problems. Any supplemental report shall be provided to Plaintiff's counsel at least 15 days before
trial. If the examination involves neuropsychological testing: In addition to the report, the
examiner shall provide all raw data, including copies of all notes, tests, test results, scoring and
test protocols, to Plaintiff's treating or retained psychologist or neuropsychologist, who must
return them to the defense examiner at the conclusion of this case.
All protected health information generated or obtained by the examiner shall be kept in
accordance with HIPAA requirements and shall not be disseminated by the examiner or defense
counsel to any other person or entity not a party to this case without a specific order from the court.
Defense counsel will provide the examiner with a copy of this notice and explain the need for the
examiner’s compliance. As a condition of performing the examination, the examiner shall agree
to provide responses to FRCP 1.280(b)(4)(A) inquiries, once such interrogatories or Requests to
Produce are propounded by Plaintiff.
The Defendant will seek to recover from Plaintiff any no show and/or late cancellation
fees that may be charged by the examining physician’s office in the event the Plaintiff fails to
appear for the examination or fails to notify Defendant’s counsel’s office at least 10 days prior to
the examination that Plaintiff cannot attend. The court shall reserve ruling as to whether such
costs, if imposed by an examiner, may be properly recoverable by the Defendant as a taxable
cost, or otherwise awarded by the court.
(00242602.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been e-served
through the Florida Courts E-filing Portal or email to Scott J. Liotta, Esquire, Dan Newlin &
Partners, 7335 W. Sand Lake Road, Suite 300, Orlando, Fl 32819 at
liotta.pleadings@newlinlaw.com this 24th day of June 2021.
4s/Garrett M. Brown
Gregory D. Jones, Esquire
Florida Bar No.: 372285
Primary email: gjones@rywantalvarez.com
Secondary email: service@rywantalvarez.com
mkeni@rywantalvarez.com
Garrett M. Brown, Esquire
Florida Bar No.: 105765
Primary email: gbrown@rywantalvarez.com
Secondary email: amecarthy@rywantalvarez.com
Rywant, Alvarez, Jones, Russo & Guyton, P.A.
302 Knights Run Avenue, Suite 1000
Tampa, Florida 33602
(Tel) 813-229-7007 / (Fax) 813-223-6544
Attorneys for Donald Lambert and
DJ's Root Scooter, Inc.
(00242602.
Preview
Filing # 129441660 E-Filed 06/24/2021 02:18:39 PM IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT IN AND FOR MARION COUNTY, FLORIDA CIVIL DIVISION VIRGINIA PHILLIPS CASE NO: 2019-CA-0142 Plaintiff(s) Vv. DONALD LAMBERT AND DJ'S ROOT DIVISION: SCOOTER, INC. Defendant(s) / NOTICE OF COMPULSORY MEDICAL EXAMINATION Defendant(s), Donald Lambert and DJ's Root Scooter, Inc., by and through the undersigned counsel, pursuant to Rule 1.360(a)(1), hereby requests the Plaintiff, Virginia Phillips submit to a compulsory medical examination before the following physician at the specified time and place. Physician: Robert Kowalski, M.D. Location: 201 N. Magnolia Ave, Ocala, FL 34475 Date/Time: July 15, 2021 at 1:00 P.M. As good cause of said examination, Defendant states that a controversy exists as to the physical condition of the Plaintiff and that such examination is necessary to the proper evaluation of the Plaintiffs claims of personal injuries. The examination will be a compulsory medical examination of the Plaintiff concerning his complaints which give rise to the subject litigation. The examiner shall be limited to that information reasonably necessary to conduct the specialty-appropriate examination and evaluation of an individual, including a brief medical history as well as present complaints. The examination is to be limited to the specific medical or psychological conditions in controversy and unless modified by another court order, such examination will be the only exam for the specific condition(s) or issues in controversy (without Electronically Filed Marion Case # 19CA000142AX 06/24/2021 02:18:39 PM (00242602. limiting the possibility of multiple specialties). No invasive testing shall be performed without informed consent by the Plaintiff/examinee or order of the court. The examinee will not be required to complete any lengthy information forms upon arrival at the examiner’s office. The examinee will furnish the doctor with name, address, and date of birth, and responses as to how she was injured, and where and how she sustained said injuries. There will be no questions pertaining to “fault”, when the Plaintiff hired her attorney, or what the Plaintiff told her attorney or any investigators. Undersigned counsel will provide the examiner with all medical records, imaging studies, test results, and the like. Unless she has exclusive control of any original records or imaging studies, Plaintiff shall not be required to bring anything to the exam other than valid identification (e.g., Driver’s License, Official Florida Identification Card or government-issued Passport). Plaintiff is permitted to have her attorney (and spouse, or parent, or other representative) present for the examination, provided that only one of these listed non-attorney_persons may attend. Such person(s) may unobtrusively observe the examination, unless the examiner or defense counsel establishes a case-specific reason why such person’s presence would be disruptive, and that no other qualified individual in the area would be willing to conduct the examination with such person present. Jn the case of a neuropsychological exam, all observers shall watch and listen from an adjacent room if available, or by video feed. If the examination is to be recorded or observed by others, the request or response of the examinee’s attorney shall include the number of people attending, their role, and the method(s) of recording. Plaintiff's counsel may also send a court reporter or a videographer to the examination, provided that claimant’s counsel notifies defense counsel at least 10 days in advance of the identity, (00242602. either by proper name or by title (e.g., videographer from XYZ Reporting Service). It is the duty of defense counsel to relay this information to the examiner’s office personnel. Undersigned counsel will not attend, observe, or record the examination. If a videotape or digital recording is made of the examination by counsel for Plaintiff, it is considered work product, and neither the defense nor the examiner is entitled to a copy, unless and until same is designated as (or reasonably expected to become) trial evidence, subject to discovery only upon a showing of need and undue hardship. Use of the video or DVD is limited specifically to the instant litigation. Only if the video is identified as impeachment material for use at trial will defense counsel request a copy of Plaintiff's video, should one be taken. At the close of litigation, including any appeal, all copies shall be destroyed — unless counsel convinces the court (and an order is entered) that there is some compelling reason for either party, or the examiner, to retain a copy. The medical examiner shall not be entitled to any payment of an additional or accommodation fee from the Plaintiff or her counsel, simply because of the presence of a legally permitted third parties. The court shall reserve ruling as to whether such costs, if imposed by an examiner, may be properly recoverable by the Defendant as a taxable cost, or otherwise awarded by the court. Neither Plaintiff's counsel, nor anyone else permitted to be present, shall interject themselves into the examination unless the examiner questions Plaintiff in a manner specifically proscribed above. If Plaintiff’s counsel speaks openly or confers privately with the examinee, and this disrupts the exam or causes the examiner to terminate the examination, counsel may be subject to sanctions. The report of the examiner shall be sent to Plaintiffs counsel, as required by Rule 1.360(b), within 30 days of the examination — but in no event less than 21 days before the beginning of trial, unless otherwise agreed between counsel for the parties or ordered by the court due to special (00242602. problems. Any supplemental report shall be provided to Plaintiff's counsel at least 15 days before trial. If the examination involves neuropsychological testing: In addition to the report, the examiner shall provide all raw data, including copies of all notes, tests, test results, scoring and test protocols, to Plaintiff's treating or retained psychologist or neuropsychologist, who must return them to the defense examiner at the conclusion of this case. All protected health information generated or obtained by the examiner shall be kept in accordance with HIPAA requirements and shall not be disseminated by the examiner or defense counsel to any other person or entity not a party to this case without a specific order from the court. Defense counsel will provide the examiner with a copy of this notice and explain the need for the examiner’s compliance. As a condition of performing the examination, the examiner shall agree to provide responses to FRCP 1.280(b)(4)(A) inquiries, once such interrogatories or Requests to Produce are propounded by Plaintiff. The Defendant will seek to recover from Plaintiff any no show and/or late cancellation fees that may be charged by the examining physician’s office in the event the Plaintiff fails to appear for the examination or fails to notify Defendant’s counsel’s office at least 10 days prior to the examination that Plaintiff cannot attend. The court shall reserve ruling as to whether such costs, if imposed by an examiner, may be properly recoverable by the Defendant as a taxable cost, or otherwise awarded by the court. (00242602. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been e-served through the Florida Courts E-filing Portal or email to Scott J. Liotta, Esquire, Dan Newlin & Partners, 7335 W. Sand Lake Road, Suite 300, Orlando, Fl 32819 at liotta.pleadings@newlinlaw.com this 24th day of June 2021. 4s/Garrett M. Brown Gregory D. Jones, Esquire Florida Bar No.: 372285 Primary email: gjones@rywantalvarez.com Secondary email: service@rywantalvarez.com mkeni@rywantalvarez.com Garrett M. Brown, Esquire Florida Bar No.: 105765 Primary email: gbrown@rywantalvarez.com Secondary email: amecarthy@rywantalvarez.com Rywant, Alvarez, Jones, Russo & Guyton, P.A. 302 Knights Run Avenue, Suite 1000 Tampa, Florida 33602 (Tel) 813-229-7007 / (Fax) 813-223-6544 Attorneys for Donald Lambert and DJ's Root Scooter, Inc. (00242602.