Preview
Filing # 184648466 E-Filed 10/24/2023 02:48:36 PM
IN THE CIRCUIT COURT FOR THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, FLORIDA
CIRCUIT CIVIL DIVISION
BARBARA GONZALEZ,
CASE NO.: 21000968CA
Plaintiff,
v.
MICHAEL G. EDWARDS and
HHS ENVIRONMENTAL SERVICES, LLC and
PORT CHARLOTTE HMA, LLC d/b/a
SHOREPOINT HEALTH PORT CHARLOTTE,
f/k/a BAYFRONT HEALTH PORT CHARLOTTE,
Defendants.
___________________________________/
DEFENDANT, HOSPITAL HOUSEKEEPING SYSTEMS, LLC’s and MICHAEL G.
EDWARDS’ EMERGENCY MOTION TO COMPEL PLAINTIFF’S COMPULSORY
MEDICAL EXAMINATION
Defendants, HOSPITAL HOUSEKEEPING SYSTEMS, LLC (“HHS and MICHAEL
G. EDWARDS (“Mr. Edwards”), by and through their undersigned attorney, hereby files this
Emergency Motion to Compel Compulsory Medical Examination of Plaintiff, Barbara Gonzalez,
by Defendant’s Expert, Dr., Charles Graubert and states as follows:
This matter is currently set for trial commencing on December 12, 2023. The
discovery cut off is November 30, 2023.
Plaintiff claims that, on July 7, 2020, she sustained physical injuries when she was
allegedly struck by a golf cart driven by an employee of and Bayfront Health, Mr.
Edwards, while at Bayfront Health Port Charlotte Hospital (“Bayfront Health”). e has asserted
CASE NO.: 21000968CA
Page 2
a negligence claim against Mr. Edwards and a dangerous instrumentality/negligent entrustment
claim against HHS respectively.
On October 10, 2023, Dr. Merritt, Plaintiff’s life care plan expert, authored an
updated report. The report reflects his examination of Plaintiff which occurred on September 18,
2023.
On October 16, 2023, Defendants deposed Dr. Merritt and he testified that his
updated report dated October 10, 2023, was not final and he intended to supplement his report to
include costs for future surgery.
Mediation in the subject matter occurred on September 28, 2023.
On September 18, 2023, Plaintiff produced reports by Plaintiff’s orthopedic
treating physician dated July 3, 2023 and February 20, 2023, and a functional capacity evaluation
dated April 11, 2023.
On October 16, 2023, Defendants deposed Dr. Merritt and he testified that his
updated report dated October 10, 2023, was not final and he intended to supplement his report to
include costs for future surgery.
In light of the above, on October 3, 2023, Defendant requested to schedule a
compulsory medical examination (“CME”) of Plaintiff with Dr. Charles Graubert (“Dr.
Graubert”) Defendant’s physical medicine and rehabilitation expert who is located in Charlotte
County, Florida, in order to enable him to render his opinions in this matter.
Accordingly, Defendant provided Plaintiff with possible dates for this
examination to occur including on October 23, 2023 or October 26, 2023 at 11:30 a.m.
On October 6, 2023, Defendant’s counsel followed up with Plaintiff’s counsel to
confirm one of the proposed dates regarding the CME with Dr. Graubert. Plaintiff’s counsel
Kubicki Draper • 9100 S. DADELAND BLVD., SUITE 1800 MIAMI, FL 33156 • T: (305) 374 1212 • F: (305) 374-7846
CASE NO.: 21000968CA
Page 3
responded: “What type of CME is Dr. Graubert proposing to do on our client? [S]ince it’s a
“medical” exam, what area(s) does he plan to examine?
Given the opinions of Plaintiff’s Life Care expert, Dr. John Lawrence Merritt
(“Dr. Merritt”), Defendant retained and disclosed Dr. Charles Graubert, a board certified
physical medicine and rehabilitation expert to testify concerning Plaintiff’s future medical care
and treatment and costs. Further, he is expected to provide testimony related to Plaintiff’s
claimed injuries, causation, the medical necessity and reasonableness of past, present and future
healthcare treatment and expenses, prior medical history, functionality, abilities, current
condition, future prognosis, the nature and extent of injuries, the reasonableness and necessity of
the medical care given, the mechanism of injury, the issue of causation, the reasonableness of the
medical billing, the issue of permanency, ability to work, ability to perform daily living
activities, etc., and to rebut the opinions of Plaintiff’s experts, particularly those of Dr. Merrit
Dr. Graubert is currently set to have his deposition on November 21, 2023.
To date, Defendants have been unable to secure a date for Dr. Graubert’s
compulsory medical examination as Plaintiff has objected to same.
Plaintiff’s counsel, has objected to any medical examination of the Plaintiff by Dr.
Graubert apparently on the grounds that we “never revealed him as an examiner
Contrary to Plaintiff’s meritless objections, Defendant is entitled to a medical
examination of Plaintiff by Dr. Graubert since Plaintiff’s medical condition is at issue in this
case, as well as her alleged need for future medical treatment as detailed in the Life Care Plan
prepared by Plaintiff’s expert, Dr. Merritt
Kubicki Draper • 9100 S. DADELAND BLVD., SUITE 1800 MIAMI, FL 33156 • T: (305) 374 1212 • F: (305) 374-7846
CASE NO.: 21000968CA
Page 4
Of importance, Plaintiff’s life care plan expert, Dr. Merritt has had the
opportunity to examine the Plaintiff to render his opinions, specifically, his last examination
occurred on September 18, 2023.
Pursuant to Florida Rule of Civil Procedure 1.360, “[a] party may request any
other party to submit to … examination by a qualified expert when the condition that is the
subject of the requested examination is in controversy.” A complaint alleging personal injuries
is, in and of itself, sufficient to show good cause for a physical examination. Dominique v.
Yellow Freight Systems, Inc., 642 So. 2d 594 (Fla. 4th DCA 1994).
The phrase “in controversy” simply means that the party's condition is directly
involved in some material element of the cause of action or defense. S.N. v. Dep't of Health &
Rehab. Serv., 529 So. 2d 1156, 1158 (Fla. 1st DCA 1988)(citing Fruh v. State. Dep't of Health &
Rehab. Serv., 430 So. 2d 581, 584 (Fla. 5th DCA 1983) (superseded by statute)).
Here, it is clear that Plaintiff medical condition is in controversy as she claims
injuries to her left wrist and right ankle. Further, Dr. Merritt has opined that she requires future
care as it pertains to her knee and back.
Dr. Graubert is in need of a medical examination, to ascertain the level of
disability, life time care, or permanent injury, if any, Plaintiff claims and seeks recovery for at
trial.
Plaintiff’s injuries are directly correlated with their claims for life time care. By
preventing the CME of Plaintiff when her injuries are an integral part of this case, Defendant
cannot adequately prepare for trial to rebut the findings of Plaintiff’s life care expert, Dr. Merritt
and will be severely prejudiced.
Kubicki Draper • 9100 S. DADELAND BLVD., SUITE 1800 MIAMI, FL 33156 • T: (305) 374 1212 • F: (305) 374-7846
CASE NO.: 21000968CA
Page 5
The injuries the Plaintiff alleges, “even though ‘in controversy’, cannot
adequately be evidenced without the assistance of expert medical testimony Gasparino v.
Murphy, 352 So.2d 933, 935 (Fla 2nd DCA 1977).
Defendant is unable to adequately assess Plaintiff's condition and life time care
claims by a review of records in order to defend itself in court, which Florida courts have
recognized. See, Broward County Sch. Bd. v. Cruz, 761 So. 2d 388, 393 (Fla. 4th DCA 2000)(“It
is not enough that the defendants are allowed to depose plaintiffs medical experts and then
review plaintiffs medical records”); Dominique, 642 So. 2d 594, 596 (Plaintiffs' objection filed
in the trial court claimed that good cause was not shown because the defendants could depose
plaintiffs' medical experts and defendants' experts could then review plaintiffs' medical records.
A similar argument was rejected by the first district in Toucet v. Big Bend Moving & Storage,
Inc., 581 So. 2d 952, 953 (Fla. 1st DCA 1991), in which the court observed that if the plaintiff
were correct it would practically eliminate physical examinations in personal injury cases...
Since federal decisions interpreting federal rules which are similar to Florida's rules are
persuasive, we adopt the rationale of the Supreme Court in Schlagenhauf v. Holder, 379 U.S.
104, 117-121 (1964) and hold that the complaint itself is sufficient to establish good cause for a
physical examination of a plaintiff seeking to recover for personal injuries.).
Due to Plaintiff’s claimed injuries future medical care and treatment, Defendant
would be severely prejudiced without the opportunity to conduct a physical examination of
Plaintiff, by its physical medicine and rehabilitation expert, Dr. Graubert.
In order for Defendant to rebut the opinions of Dr. Merritt, Defendant needs input
from its expert, Dr. Graubert, subsequent to his medical examination of Plaintiff. Just as Dr.
Merritt, Defendant’s expert should be afforded the opportunity to examine Plaintiff.
Kubicki Draper • 9100 S. DADELAND BLVD., SUITE 1800 MIAMI, FL 33156 • T: (305) 374 1212 • F: (305) 374-7846
CASE NO.: 21000968CA
Page 6
Further, in order for Dr. Graubert to formulate his opinions into a report, he is in
need of a compulsory medical examination of Plaintiff.
Accordingly, HHS and Mr. Edwards respectfully request this Honorable Court to
enter an Order Compelling Plaintiff to appear for a medical examination before Dr. Graubert.
This matter is an emergency as trial in this matter is schedule to commence
December 12, 2023 and the discovery cut off is November 30, 2023.
WHEREFORE, Defendants, HOSPITAL HOUSEKEEPING SYSTEMS, LLC and
MICHAEL G. EDWARDS, respectfully requests that this Honorable Court enter an order
compelling Plaintiff to attend a medical examination by Defendant’s expert, Dr. Graubert, before
November 30, 2023 or on another date certain in which the doctor is available; and any other
relief this Court deems appropriate and necessary.
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing was served via
email to all counsel of record on the attached Service List on this 24 day of October, 2023.
KUBICKI DRAPER
9100 South Dadeland Blvd.
Suite 1800
Miami, FL 33156
Telephone: (305) 982-6604
Facsimile: (305) 374-7846
Pleadings: FIC-KD@kubickidraper.com
By: /s/ Francesca Ippolito-Craven
FRANCESCA IPPOLITO-CRAVEN
fic@kubickidraper.com
Florida Bar Number: 0145361
JESSICA M. DEL SOL
jmd@kubickidraper.com
Florida Bar Number: 1031645
Kubicki Draper • 9100 S. DADELAND BLVD., SUITE 1800 MIAMI, FL 33156 • T: (305) 374 1212 • F: (305) 374-7846
CASE NO.: 21000968CA
Page 7
SERVICE LIST
Counsel for Plaintiff:
Helen Stratigakos, Esq.
STRATIGAKOS LAW, P.A.
412 East Madison Street, Suite 814
Tampa, FL 33602
Primary: Helen@stratigakoslaw.com
Secondary: admin@stratigakoslaw.com
Co-counsel for Plaintiff:
Michael J. Rossi, Esq.
MICHAEL J. ROSSI, P.A.
115 South Albany Avenue
Tampa, FL 33606
michael@michaelrossilaw.com
Kubicki Draper • 9100 S. DADELAND BLVD., SUITE 1800 MIAMI, FL 33156 • T: (305) 374 1212 • F: (305) 374-7846
Preview
Filing # 184648466 E-Filed 10/24/2023 02:48:36 PM IN THE CIRCUIT COURT FOR THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA CIRCUIT CIVIL DIVISION BARBARA GONZALEZ, CASE NO.: 21000968CA Plaintiff, v. MICHAEL G. EDWARDS and HHS ENVIRONMENTAL SERVICES, LLC and PORT CHARLOTTE HMA, LLC d/b/a SHOREPOINT HEALTH PORT CHARLOTTE, f/k/a BAYFRONT HEALTH PORT CHARLOTTE, Defendants. ___________________________________/ DEFENDANT, HOSPITAL HOUSEKEEPING SYSTEMS, LLC’s and MICHAEL G. EDWARDS’ EMERGENCY MOTION TO COMPEL PLAINTIFF’S COMPULSORY MEDICAL EXAMINATION Defendants, HOSPITAL HOUSEKEEPING SYSTEMS, LLC (“HHS and MICHAEL G. EDWARDS (“Mr. Edwards”), by and through their undersigned attorney, hereby files this Emergency Motion to Compel Compulsory Medical Examination of Plaintiff, Barbara Gonzalez, by Defendant’s Expert, Dr., Charles Graubert and states as follows: This matter is currently set for trial commencing on December 12, 2023. The discovery cut off is November 30, 2023. Plaintiff claims that, on July 7, 2020, she sustained physical injuries when she was allegedly struck by a golf cart driven by an employee of and Bayfront Health, Mr. Edwards, while at Bayfront Health Port Charlotte Hospital (“Bayfront Health”). e has asserted CASE NO.: 21000968CA Page 2 a negligence claim against Mr. Edwards and a dangerous instrumentality/negligent entrustment claim against HHS respectively. On October 10, 2023, Dr. Merritt, Plaintiff’s life care plan expert, authored an updated report. The report reflects his examination of Plaintiff which occurred on September 18, 2023. On October 16, 2023, Defendants deposed Dr. Merritt and he testified that his updated report dated October 10, 2023, was not final and he intended to supplement his report to include costs for future surgery. Mediation in the subject matter occurred on September 28, 2023. On September 18, 2023, Plaintiff produced reports by Plaintiff’s orthopedic treating physician dated July 3, 2023 and February 20, 2023, and a functional capacity evaluation dated April 11, 2023. On October 16, 2023, Defendants deposed Dr. Merritt and he testified that his updated report dated October 10, 2023, was not final and he intended to supplement his report to include costs for future surgery. In light of the above, on October 3, 2023, Defendant requested to schedule a compulsory medical examination (“CME”) of Plaintiff with Dr. Charles Graubert (“Dr. Graubert”) Defendant’s physical medicine and rehabilitation expert who is located in Charlotte County, Florida, in order to enable him to render his opinions in this matter. Accordingly, Defendant provided Plaintiff with possible dates for this examination to occur including on October 23, 2023 or October 26, 2023 at 11:30 a.m. On October 6, 2023, Defendant’s counsel followed up with Plaintiff’s counsel to confirm one of the proposed dates regarding the CME with Dr. Graubert. Plaintiff’s counsel Kubicki Draper • 9100 S. DADELAND BLVD., SUITE 1800 MIAMI, FL 33156 • T: (305) 374 1212 • F: (305) 374-7846 CASE NO.: 21000968CA Page 3 responded: “What type of CME is Dr. Graubert proposing to do on our client? [S]ince it’s a “medical” exam, what area(s) does he plan to examine? Given the opinions of Plaintiff’s Life Care expert, Dr. John Lawrence Merritt (“Dr. Merritt”), Defendant retained and disclosed Dr. Charles Graubert, a board certified physical medicine and rehabilitation expert to testify concerning Plaintiff’s future medical care and treatment and costs. Further, he is expected to provide testimony related to Plaintiff’s claimed injuries, causation, the medical necessity and reasonableness of past, present and future healthcare treatment and expenses, prior medical history, functionality, abilities, current condition, future prognosis, the nature and extent of injuries, the reasonableness and necessity of the medical care given, the mechanism of injury, the issue of causation, the reasonableness of the medical billing, the issue of permanency, ability to work, ability to perform daily living activities, etc., and to rebut the opinions of Plaintiff’s experts, particularly those of Dr. Merrit Dr. Graubert is currently set to have his deposition on November 21, 2023. To date, Defendants have been unable to secure a date for Dr. Graubert’s compulsory medical examination as Plaintiff has objected to same. Plaintiff’s counsel, has objected to any medical examination of the Plaintiff by Dr. Graubert apparently on the grounds that we “never revealed him as an examiner Contrary to Plaintiff’s meritless objections, Defendant is entitled to a medical examination of Plaintiff by Dr. Graubert since Plaintiff’s medical condition is at issue in this case, as well as her alleged need for future medical treatment as detailed in the Life Care Plan prepared by Plaintiff’s expert, Dr. Merritt Kubicki Draper • 9100 S. DADELAND BLVD., SUITE 1800 MIAMI, FL 33156 • T: (305) 374 1212 • F: (305) 374-7846 CASE NO.: 21000968CA Page 4 Of importance, Plaintiff’s life care plan expert, Dr. Merritt has had the opportunity to examine the Plaintiff to render his opinions, specifically, his last examination occurred on September 18, 2023. Pursuant to Florida Rule of Civil Procedure 1.360, “[a] party may request any other party to submit to … examination by a qualified expert when the condition that is the subject of the requested examination is in controversy.” A complaint alleging personal injuries is, in and of itself, sufficient to show good cause for a physical examination. Dominique v. Yellow Freight Systems, Inc., 642 So. 2d 594 (Fla. 4th DCA 1994). The phrase “in controversy” simply means that the party's condition is directly involved in some material element of the cause of action or defense. S.N. v. Dep't of Health & Rehab. Serv., 529 So. 2d 1156, 1158 (Fla. 1st DCA 1988)(citing Fruh v. State. Dep't of Health & Rehab. Serv., 430 So. 2d 581, 584 (Fla. 5th DCA 1983) (superseded by statute)). Here, it is clear that Plaintiff medical condition is in controversy as she claims injuries to her left wrist and right ankle. Further, Dr. Merritt has opined that she requires future care as it pertains to her knee and back. Dr. Graubert is in need of a medical examination, to ascertain the level of disability, life time care, or permanent injury, if any, Plaintiff claims and seeks recovery for at trial. Plaintiff’s injuries are directly correlated with their claims for life time care. By preventing the CME of Plaintiff when her injuries are an integral part of this case, Defendant cannot adequately prepare for trial to rebut the findings of Plaintiff’s life care expert, Dr. Merritt and will be severely prejudiced. Kubicki Draper • 9100 S. DADELAND BLVD., SUITE 1800 MIAMI, FL 33156 • T: (305) 374 1212 • F: (305) 374-7846 CASE NO.: 21000968CA Page 5 The injuries the Plaintiff alleges, “even though ‘in controversy’, cannot adequately be evidenced without the assistance of expert medical testimony Gasparino v. Murphy, 352 So.2d 933, 935 (Fla 2nd DCA 1977). Defendant is unable to adequately assess Plaintiff's condition and life time care claims by a review of records in order to defend itself in court, which Florida courts have recognized. See, Broward County Sch. Bd. v. Cruz, 761 So. 2d 388, 393 (Fla. 4th DCA 2000)(“It is not enough that the defendants are allowed to depose plaintiffs medical experts and then review plaintiffs medical records”); Dominique, 642 So. 2d 594, 596 (Plaintiffs' objection filed in the trial court claimed that good cause was not shown because the defendants could depose plaintiffs' medical experts and defendants' experts could then review plaintiffs' medical records. A similar argument was rejected by the first district in Toucet v. Big Bend Moving & Storage, Inc., 581 So. 2d 952, 953 (Fla. 1st DCA 1991), in which the court observed that if the plaintiff were correct it would practically eliminate physical examinations in personal injury cases... Since federal decisions interpreting federal rules which are similar to Florida's rules are persuasive, we adopt the rationale of the Supreme Court in Schlagenhauf v. Holder, 379 U.S. 104, 117-121 (1964) and hold that the complaint itself is sufficient to establish good cause for a physical examination of a plaintiff seeking to recover for personal injuries.). Due to Plaintiff’s claimed injuries future medical care and treatment, Defendant would be severely prejudiced without the opportunity to conduct a physical examination of Plaintiff, by its physical medicine and rehabilitation expert, Dr. Graubert. In order for Defendant to rebut the opinions of Dr. Merritt, Defendant needs input from its expert, Dr. Graubert, subsequent to his medical examination of Plaintiff. Just as Dr. Merritt, Defendant’s expert should be afforded the opportunity to examine Plaintiff. Kubicki Draper • 9100 S. DADELAND BLVD., SUITE 1800 MIAMI, FL 33156 • T: (305) 374 1212 • F: (305) 374-7846 CASE NO.: 21000968CA Page 6 Further, in order for Dr. Graubert to formulate his opinions into a report, he is in need of a compulsory medical examination of Plaintiff. Accordingly, HHS and Mr. Edwards respectfully request this Honorable Court to enter an Order Compelling Plaintiff to appear for a medical examination before Dr. Graubert. This matter is an emergency as trial in this matter is schedule to commence December 12, 2023 and the discovery cut off is November 30, 2023. WHEREFORE, Defendants, HOSPITAL HOUSEKEEPING SYSTEMS, LLC and MICHAEL G. EDWARDS, respectfully requests that this Honorable Court enter an order compelling Plaintiff to attend a medical examination by Defendant’s expert, Dr. Graubert, before November 30, 2023 or on another date certain in which the doctor is available; and any other relief this Court deems appropriate and necessary. CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing was served via email to all counsel of record on the attached Service List on this 24 day of October, 2023. KUBICKI DRAPER 9100 South Dadeland Blvd. Suite 1800 Miami, FL 33156 Telephone: (305) 982-6604 Facsimile: (305) 374-7846 Pleadings: FIC-KD@kubickidraper.com By: /s/ Francesca Ippolito-Craven FRANCESCA IPPOLITO-CRAVEN fic@kubickidraper.com Florida Bar Number: 0145361 JESSICA M. DEL SOL jmd@kubickidraper.com Florida Bar Number: 1031645 Kubicki Draper • 9100 S. DADELAND BLVD., SUITE 1800 MIAMI, FL 33156 • T: (305) 374 1212 • F: (305) 374-7846 CASE NO.: 21000968CA Page 7 SERVICE LIST Counsel for Plaintiff: Helen Stratigakos, Esq. STRATIGAKOS LAW, P.A. 412 East Madison Street, Suite 814 Tampa, FL 33602 Primary: Helen@stratigakoslaw.com Secondary: admin@stratigakoslaw.com Co-counsel for Plaintiff: Michael J. Rossi, Esq. MICHAEL J. ROSSI, P.A. 115 South Albany Avenue Tampa, FL 33606 michael@michaelrossilaw.com Kubicki Draper • 9100 S. DADELAND BLVD., SUITE 1800 MIAMI, FL 33156 • T: (305) 374 1212 • F: (305) 374-7846