Preview
Filing # 89498437 E-Filed 05/14/2019 02:12:05 PM
JN THE CIRCUIT COURT OF THE SEVENTEENTH
JUDICIAL CIRCUIT IN AND FOR BROWARD
COUNTY, FLORIDA
THOMAS ROSS, CASE NO.: CACE18000308 (03)
Plaintiff,
vs,
BRIAN LIEFER AND GEICO GENERAL
INSURANCE COMPANY,
Defendants’,
/
DEFENDANTS! RESPONSE TO PLAINTIFE’S OBJECTIONS AT THE COMPULSORY
MEDICAL EXAMINATION
COMES NOW the Defendant, BRIAN LIEFER, by and through the undersigned counsel,
and moves this Honorable Court to Overrule the Plaintiff's objections to the Compulsory Medical
Examination, and in support thereof, would allege as follows:
1. This is a lawsuit arising from an automobile accident that occurred on July 15,2016 where
the Plaintiff is alleging injuries to her body.
2. The Plaintiff is scheduled for a Compulsory Medical Examination (CME) to have his
physical condition examined by an Orthopaedic physician, Rolando Garcia, Ir... M.D. whose
address is Orthopedic Care & Sports Medicine, 230 S. Dixie Highway, Hallandale, FL 33009 on
June 17, 2019 at 10:15 am. (Attached hereto as Exhibit “A”)
3. The Plaintiff has filed objections as to. the CME. (Attached heréto-as Exhibit “B”) and the
Defendant requests that this Court overrule.the objections and allow the CME to go forward.
4. Fhe Plaintiff has sent a proposed agreed order that is subject to the objections that have
been filed by the: Plaintiff's lawyer arid. after reviewing said order the Defendant agrees to
paragraphs 1, 2, 3, 4,5, 6, 8,9, 10, 11, 12, 14, 15, 16, 17, 18, 19, and 20.
+#* FILED. BROWARD. COUNTY FL BRENDA D FORMAN. CLERK 05/14/2019 02:12:05 PML ####5. However, the Defendant does not agree to the Plaintiff's objection. regarding the use of
forms and questionnaires. in paragraph 7 of the objections. The use of forms, documents, and
pain diagrams.are useful tools.that are customary in the field of medicine. The Plaintiff filled out
similar forms, documents and diagrams for het owii doctors without objection. Obviously, there is:
no legal objection to the use of forms, questionnaires, or diagrams. These forms:and questionnaires
will allow the Plaintiff to fully and completely explain to the doctor what body parts were injured.
The forms have already been delivered to Plaintiffs Counsel in advance of the CME. The Plaintiff
should be ordered to deliver the required. forms to Dr. Garcia at the CME. The objection contained
within. paragraph.7 should be overruled.
6. As to paragraph 13, the Defendant would ask the Court io rule that the following language
apply to the CME: “the report shali be senit to Plaintiff's Counsel within 5 days of the receipt of thte report
by Defense Counsel. and after Defense Counsel has received a request for the report from the Plaintiffand
his Counsel."
7. The response to the objections have been based upon the proposed order that was sent to
Defense Counsel on or about April 8, 2019. However, if this-is a miisunderstanding as to what the
final objections are from the Plaintiff then the Defendant does not agree to the following
paragraphs that are contained withiti the Plaintiff's Objections io Compulsory Examination that
were filed on April 8, 2019: paragraphs 3, 4, 5, 6, 7 (a, d, é, f,h, k, D8 (e.g. spouse attending
the CME), 13, 14, 15, 16, 18, 19, 23, 28, 29, 30, and 31.
8. In an effort to comply with the local rules regarding hearings the undersigned sent an emai!
to Plaintiff's Counsel on April 10,2019. The undersigned has not received a tesponse to the email
as of the date of this response.
9. Other grounds to be.argued Ore Tenus.WHEREFORE, Defendant, BRIAN LIEFER, respectfully requests this Honorable
Court overrule the objections as seen above, and for further relief as this Honorable Court deems
just and necessary.
CERTIFICATE OF SERVICE
THEREBY CERTIFY that on May 14, 2019, the foregoing was electronically filed with the Florida
Courts E-Filing Portal and-that as a registered participant of the Portal I have effectuated:service through
the Portal in compliance with Rule 2.516, Fla, R. Jud. Admin., on Trelvis D. Randolph, Esq;
trelvis.candolph@esktegal.com, ileana.machado@csklegal.com, alina.gonzalez@csklegal.com, Cole, Scott
& Kissane, P:A., 9150 S, Dadeland Boulevard, Cole, Scott & Kissane Bldg. -Suite 1400, Miami, FL.33256
and Todd L.. Baker, Esq. TBaker@InjuryLawyers.com, Steinger, Iscoe & Greene, P.A:, 2727 W Cypress
Creek Rd., Fort Lauderdale, FL 33309.
NICHOLAS J. RYAN & ASSOCIATES,
110S, E. 6th Street, Suite 2100
Fort Lauderdale, FL, 33301
Telephone: (954) 627-9401
E-mail for service (FL R, Jud. Admin. 2.516):
flor.law-chuckbenson,29501 9@statefarm.com
Charles E. Benson, Esq.
Florida Bar-No.: 974056
Attorney for Defendant, Brian Liefer
Atlomeys and Staff of Nicholas J. Ryan & Associates are Employces of
the, Law Department of State Farm Mutual: Automobile {nsurance
CompanyIN THE CIRCUIT COURT OF THE
SEVENTEENTH JUDICIAL. CIRCUIT IN AND
FOR BROWARD COUNTY, FLORIDA
THOMAS ROSS, CASE NO.: CACE18000308 (03)
Plaintiff,
YS.
BRIAN LIEFER AND GEICO
GENERAL INSURANCE COMPANY,
Defendants,
DEFENDANT'S AMENDED SECOND
REQUEST FOR COMPULSORY MEDICAL EXAMINATION
{Cancels April 22, 2019 per Doctor’s Request)
If the CME is not cancelled more than 72 hours/3 working business days in advance or if
the Plaintiff is a No Show, then a:$250.00 fee will apply.
(Amended as to Time Only)
Pursuant to Fla.R.Civ.P. 1.360, the Defendant, BRIAN W. LIEFER (hereinafter
Defendant”), hereby requests the Plaintiff, THOMAS S. ROSS (hereinafter “Plaintiff”), to have
Plaintiff's physical condition examined as indicated below, and. further requests the Plaintiff to
serve a response Within thirty (30) days after service of this Request-as provided in the above
Rule:
I, That the Defendant would request the’ Plaintiff to appear to have Plaintiff's
physical condition examined by an orthopedic physician, Rolando Garcia, M.D. whose address is
230 South Dixie. Highway, Hallandale, FL 33009, Telephone 305-937-1999 on June 17,2019 at
10:15am.
2. This is a standard orthopedic examination. The Plaintiff will be required to
submit to x-rays. That the above physician will obtain a history of the accident, injuries: and.complaints of the Plaintiff; will conduct a physical examination, including any non-invasive
testing which may be necessary, will make a diagnosis of the physical condition of the Plaintiff
and will render opinions concerning the Plaintiff's condition.
3. In the event that the Plaintiff objects to this‘examination and fails to respond. to
this Request, or fails“to permit the examination, the undersigned will move the Court. for an
Order under Fla.R:Civ.P. 1.380 to allow said discovery examination.
4, Unless a timely and valid objection to this Notice is filed within the time set forth
by Rule 1.360, the Plaintiff is required by this Rule to. be in attendance at the above-scheduled
examination.
5. Pursuant to Rule 1,360, if the physician performing the examination is called
asa witness, the physician shall not be identified as one appointed by the Court.
6. The cost of the examination will be originally borne by the Defendant, but is
subject to taxation by the Court upon proper motion.
7. The. Plaintiff is requested to bring to said examination any X-rays, CT scan films,
MRI films or other. diagnostic: test resutts relating to thé. alleged injuries that have not
previously been disclosed to the Defendant and defense counsel.
8. That there is good cause for this Request for the examination in that the
Plaintiff has placed Plaintiff’s physical condition in issue and the Defendants have not had
the benefit of such an examination of the physical/mental condition of the Plaintiff.
9. If requested by the party te whom a request for examination is made, the
party requesting the examination shall deliver to the other party, in accordance with Rule
1.360(b)(1), a copy of a detailed written report setting out the examiner’s findings. After
delivery of the detailed written report, the party réquesting the examination to be madeshall be entifled upon request to receive from the party to whom the request. for
examination is made a-similar report of the same condition previously or thereafter made.
10. Please-advise the undersigned if an interpreter is needed.
ll. Plaintiff must present valid photo identification upon arrival. to ihe medical
examination.
CERTIFICATE OF SERVICE
1 HEREBY CERTIFY that on March 1, 2019, the foregoing was electronically filed with
the Florida Courts E-Filing Portal and that ag a registered participant of the Portal I have
effectuated service through the Portal in compliance with Rule 2.516, Fla. R. Jud. Admin., on
Trelvis D, Randolph, Esq. trelvis.randolph@csklegal.com, ileana.machado@esklegal.com,
alina.gonzalez@csklegal.com, Cole, Scott & Kissane, P.A., 9150 S. Dadeland. Boulevard, Cole,
Scott & Kissane Bldg. -Suite 1400, Miami, FL 33256 and Todd L. Baker, Esq.
TBaker@InjuryLawyers.com, Steinger, Iscoe & Greene, P.A., 2727 W Cypress Creek Rd., Fort
Lauderdale, FL 33309.
NICHOLAS J. RYAN & ASSOCIATES
110 S. E. 6th Street, Suite 2100
Fort Lauderdale, FL 33301
Telephone: (954) 627-9401
E-mail for service (FL R. Jud. Admin..2.516):
flor Jaw-chuckbenson.2950 1 9@statefarm.com
Charles E. Benson, Esq.
Florida Bar No.: 974056
Attorney for Defendant, Brian Liefer
Attorneys and Staff of Nicholas J. Ryan ‘& Associates are
Employees. of the Law Department of State Farm. Mutual
Automobile:Insutance, Company
ec: Rolando.Garcia, M.D.Filing 487645567 E-Filed 04/08/2019.04:27:09 PM.
IN THE CIRCUIT COURT OF THE 17TH
JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA
THOMAS.ROSS,
Plaintiff, CASE NO.: 18-000308 CACE (03)
vs.
BRIAN LIEFER and GEICO GENERAL
TNSURANCE COMPANY,
Defendants.
PLAINTIFF'S. OBJECTIONS TO COMPULSORY MEDICAL EXAMINATION
Plaintiff, THOMAS ROSS, by and through the undersigned. counsel and pursuant to Fla.
R. Civ, P. 1.360, files, Objections to Defendant BRIAN LIEFER’s Request for Compulsory
Medical Examination, and moves for protective rules governing the examination pursuant:to Fla.
R, Ciy..P. 1.360 as follows:
1, Defendant BRIAN LIEFER has requested that the Plaintiff, THOMAS ROSS,
submit to a.medical examination, to be performed by Rolando Garcia, M.D. on April 22, 2019.
A copy of the Defendant” Request for Compulsory Medical Examination is attached hereto as
Exhibit A,
2. Plaintiff should not be.required to provide any documentation to the Compulsory
Physical Examination doctor. This is the defense's responsibility. The Plaintiff should not be
required. to bring any documents or films, if they exist, to any Compulsory Physical
Examination.Ross-v. Licfor
Case No: CACE18000368 CA (03)
Plaintifl’s Objection to CME.
3. That the Plaintiff not be required. to submit to any additional x-rays or testing, let
alone invasive testing such as nerve studies, other than a physical examination.
4, The scope of the examination requires the disclosure of "the. nature of the
examination or the extent of testing that. may be performed by the examining. physician.”
Schagrin'v, Nacht, 683 So.2d.1173, 1174.(Fla, 4th DCA 1996), It isnot enough to say "any tests
that the doctor feels are nécessaty for a complete and thorough examination of the Plaintiff,"
because the examinee is.“entitled to know the extent-of such tests in order to seek the protection
of the court in providing reasonable measures to assure that such testing will not cause injury."
ta.
The trial court's order does not specify the manner, conditions, or
scope of the examination, thereby, in effect; giving the
psychologist "carte blanche" to perform any type, and all manner
of psychological inquiry, testing, and analysis on [plaintiff] for up
to four continuous hours; This violates clearly establislied.
principles of law, resulting inva miscarriage of justice.
Maddox v. Bullard, 141 So.3d 1264, 1266 (Fla. Sth DCA 2014).
Unit the movant specifies the scopé of the requested examination,
the: trial court is unable to determine whether the movant has
established god cause for each particular examination. "[I]f the
trial court. does not know the particular examinations. that the
psychologist plaris to conduct, it should not grant ihe’ request."
Barry y. Barry; 159 So.3d 306, 308 (Fla. Sth DCA 2015).
Although the respondent in its motion does spécifically identify
several potential examinations or tests, the language: is open-ended
("make such examinations or tests, incliding ..."), creating merely
the appearance of a. specified and limited scope. Under the
language: employed. in the motion, the psychiatrist. would be
permitted to perform other examinations or adihinister other tests
which are.not contained within the specific examples listed. More
to the.point, these niay include examinations or tests which the trial
court may not. have considered (or intended to permit) in its
determination of good cause.Ross v. Licfer
Case-No: CACE18000308 CA (03)
Plaintiff's Objection.te CME
Espinosa v. D.H. Griffin Construction Co, LLC., 42: Fla. 'L, Weekly D857, D858 (Fla. 3d DCA
4/6/16). Accordingly, any testing not. specifically identified in the Notice and authorized by the
Court should not be permitted.
5; That the Plaintiff not be required to complete any forms upon arrival at the
Compulsory Physical Examination doctor's office. Plaintiff should only be required to provide
the Compulsory Physical-Examination doctor with his/her name.
6. The Compulsory Physical: Examination is not a deposition. The defense has the
opportunity to provide the depdsition of the Plaintiff, Plaintiff's Answets to. Interrogatoiies, and
the Plaintiff's medical records. Accordingly, there is no good cause permitting the Compulsory
Physical Examination doctor to: coriduct extensive oral or written questioning of the Plaintiff.
The sole purpose of these and similar inquiries is to create a contradiction-and have the CME
opine. that Plaintiff was not frank, honest, credible or truthful, which is inappropriate.
7 Similarly, that the Compulsory Physical Examination doctor not be allowed to-ask
any questions regarding:
a. The Plaintiff's past medical history, other than specific: questions regarding the
nature of the Plaintiff's current symptoms, along with the onsét, intensity ard duration of
such symptoms;
' The CME retained expert by Defendant should not be permitted to staté personal opinions
about the Plaintiff. Iris error to state personal opinions about the merits of the case or. credibility
of the Plaintiff, Wasden v. Seaboard Coast Line Railroad Co, 474 So.2d 825 (Fla. 2d DCA
1985), rev. den. 484 So,2d 9 (Fla. 1986); Moore-y. Taylor Concrete & Supply Co., Inc., 553
So0.2d 787 (Fla. ist DCA 1989); Blue Grass Shows, Inc..v. Collins, 614 So.2d 626 (Fla. 1 DCA
1993), rev. den. 624 So.2d 264 (Fla. 1993); Nelson v. Reliance Ins. Co., 368 So.2d 361 la, 4"
DCA 1978); Riley v. Willis. 585 So.2d 676, (Fla. 1" DCA 1995)sv: Li
Case No: CACE18000308 CA (03)
Plaintiff's Objection to CME
b. The Plaintiff's version of how the accident happened, other than to describe the
impact;
The possible adversary status of the examining doctor for the
defense. is, under ordinary circumstances, a compelling. reason to
permit plaintiffs. counsel to be present to guarantee, for example,
that the doctor does not interrogate the plaintiff on liability
questions in order to scek damaging admissions.
Bartell v. MeCarrick, 498 So.2d 1378, 1380 (Fla. 4th DCA 1986) (emphasis.added).
c. Timing as.to when the Plaintiff retained an attorney,. Watson v.. Builder's Square, 563
So.2d 721 (Fla, 4th DCA 1990);
d. Who referred the Plaintiff'to any particular doctor or other health care providers, Burt
v. GEIGO, 603 So.2d 125 (Fla. 2d DCA 1992);
¢. Statements that the Plaintiff may have made. to others about the accident-or about
Plaintiff's injuries (such as: police-officers, EMT personnel, hospital personnel, doctors,
etc.);
f. Details.of prior accidents that the Plaintiff may have been involved in;
g, Timing as to when the Plaintiff first saw a doctor, or other health care provider in
relation to this accident;
h. The Plaintiff's prior work history; and
i, “What did the doctor teil you?" questions.
j. who was at faultRoss‘y, Liefer
Case No: CACE18000308 CA (03)
Plaintiff's Objection ta. CME
k. property damage
I. what anyone did or did not do at the.scene
m. who referred the Plaintiff to or how Plaintiff selected counsel,
8. Plaintiffs counsel, Plaintiffs spouse or other Plaintiffs representative be
permitted fo attend the Compulsory Physical Examination, if Plaintiff so desires. Bartell v.
MeCarrick, 498 So.2d 1378 (Fla. 4th DCA 1986). Plaintiff objects to anyone else attending
his/her compulsory medical examination. This specifically means that neither Defendant, its
attomey; or any insurance company representative may appear at the compulsory medical
examination. Prince v. Mailari, 36 So.3d'128 (Fla. 5 DCA 2010);Ruiz v. Carpio, 99 $o.3d 516.
(Fla-3d DCA 2011); Broyles vs. Reilly, 695 So.2d 832 (Fla. 2d DCA 1997); Chavez vs. J&L
Drywall, 858 So.2d'1266 (Fla. 1 DCA 2003).
9. The examination may be visually and/or audibly recorded ‘by Plaintiff including
but not Jimited to stenographical, digital, film and/or analog methods, if such is desired by
Plaintiff's counsel. Pastore v. Cerese, 556 So:2d 1235 (Fla. 2d DCA 1990) (citing Stakley v,
Alistate ins, Co., 547 So.2d 275 (Fla. 2d DCA 1989)).
10. A court reporter and/or a videographer shall be allowed to. attend Compulsory
Physical Examination, if such is desired by Plaintiff's counsel. U.S, Sec., Ins., Co. v. Cimino,
754 So.2d 697 (Fla, 2000). Any such recording or transcript shall not be discoverable by
Defendant. unless Plaintiff decides to° use it at. trial. Maguire v, Pool Doctor of Palm Beaches,
Inc., 23 $0.3d 865, (Fla. 4th DCA 2009) (citing McGarrah v. Bayfront Med. Ctr., Inc., 889 So.2d
923 (Fla. 2d DCA 2004)). For the same reasons; Defendant should not mention that the video
was taken if it is not. disclosed. Id.s¢ No: CACE8000308 CA (03)
Plaintiff's Objection to-CME
11. The Compulsory Physical Examination examiner shal] not commence the
examination prior to the appointed time or without the attendance of Plaintiff's counsel,
representative, court reporter, and/or videographer as set forth above.
12, Defense examiner ‘shall not block the video camera or otherwise obstruct the
recording of the examination.
13. The Compulsory Physical Examination doctor be required to prepare a detailed
written report setting forth al! the Compulsory: Physical Examination doctor's findings, including
results of all tests made, diagnosis, and conclusions, with similar reports of all earlier
examinations of the same condition.
14, The Compulsory Physical Examination doctors detailed written report be
prepared within. ten. (10) days of the examination and be simultaneously furnished to defense
counsel and the undersigned.
15. Pursuant to Swarez-Burgos v. Morhaint, 745 So.2d 368 (Fla. 4th DCA. 1999),
Plaintiff will rely upon the Compulsory Physical Exaniination doctor's. detailed written report.
Plaintiff moves that the Compulsory Physical Examination. doctor not be ‘allowed to change;
alter, or amend the opinions set forth in.the Compulsory Physical Examination repori during any
testimony he gives concerning the Plaintiff.
16. At trial, that the Compulsory Physical Examination doctor not be allowed to
testify and-opine that the Plaintiff gave him an inaccurate. history, or omitted telling him certain
matters concerning Plaintiff's medical history, or that Plaintiff lied to the Compulsory Physical
Examination doctor.ACE18000308 CA (03)
Plaintiff's Objection to CME
17, That the examination not be referred to as an."Independent Medical Examination”
or any other designation or description that suggests impartiality on the behalf of the Compulsory
Physical Examination doctor.
18. That all defendants be liniited to. one examination.
19. ‘The Compulsory Physical. Examination doctor must retain all documentation,
records, recordings, notes emails or other records obtained, created, provided or otherwise ever
possessed by him/her in connection with Plaintiff-or this case. This includes any patient or
examinee sign-in sheet with patient and examinee names redacted for at least the day of the
examination:
20, The examiner shoutd be réquired to provide a statement of his fees: for such
examinations and regular patients, a list of his litigation experience in the past three years and the
materials set forth in Boecher v. Allstate, and Fla, R. Civ. P. 1.280(b)(4).
21, Plaintiff objects. to any attempt to shift the. expense of said examination to
Plaintiff, including should the examination need to be changed or cancelled. Plaintiff shall not
be responsible for any disruption fees absent express order of the Court ptedicated upon Motion
and Hearing thereon.
22. Plaintiff will be excused from attending ‘said’éxamination after waiting thirty (30)
minutes after the time the Compulsory Physical Examination was scheduled to commence:
23. This examination date and.time. was not coordinated with Plaintiff, It is unknown
at this time whether Plaintiff is available at that time.
24, Plaintiff shall not be required to disrobe or do anything embarrassing including,
but not limited to changing into a surgical gown.Ross v.-Liefer
Case No: CACE18000308 CA (03)
Plaintiff's Objection ta CME
25. Defense examiner shall not ask Plaintiff rhetorical or similar questions designed
to-cause Plaintiff to question the medical advice of his healthcare providers or decisions made by
him i.e. “Don't you think it would be a good idea..."
26. Defense examiner shall not make statements to Plaintiff during. the examination
about what he would have done or would do under the circumstances.
27. The entire examination from tiie Plaintiff is taken from the lobby until he/she is
able to leave, shall -be no more than 90-minuites.
28. Defense examiner shall not be permitted to criticize the decisions of Plaintiff's
medical care providers-including but not limited to opining that he would not have.perfotmed the
surgery, that it was not reasonable or necessary, or that anyone was medically negligent.
Dungan v, Ford, 632 So. 2d 159 (Fla. lst DCA 1994); Stuart v. Hertz, 351-Se. 2d 703 (Fla,
1977).
29. The CME. examiner should be required to produce at least ten copies of his own
bills (redacted of dates and personally identifiable information and which include the amount
charged irrespective of contractual discounts or adjustments) and those of his practice for cach
and every procedure that he opinions the bills incurred by Plaintiff were not reasonable.
30. The CME examiner should be required to identify the name of each and every
provider in the local area whose bills he has reviewed (whether relied upon or not) for-the same
or substantially similar procedures: that he opines. the bills incurred by Plaintiff were not
reasonable.
31. The CME examiner should be required to carry malpractice insurance,
32. The defense attorney noticing the examination shall provide a copy hereof and/or
any Orderentered pertaining hereto to the examiner,x, Ligfer
Ci io: CACE 18000308 CA (03)
Plaintiff's Objection to CME.
33. This terms and conditions apply to any rescheduled dale or location, and any
change of examiner. Any orders entered with respect to this examination shall apply to any
rescheduled examination arid any substitute Compulsory Physical Examination physician.
34. The examiner’shall not mention the'ternis, limitations or condition of this Order at
trial.
35. The examiner shall be deposed in the county. where the examination takes place.
absent agreement of the parties to another location. If the examiner contends. that he has an
office in a county, he should:make himself available for deposition in that county.
WHEREFORE. Plaintiff, THOMAS ROSS, respectfully requests the Court sustain
Plaintiff's‘ Objections to the examination and to grant such other relief as the Court deenis just
under the circumstances.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and cotrect copy of the foregoing has been
electronically filed and served’ through the e-filing portal en this 3 i.
2019 to: Charles Benson, Esq., Nicholas J. Ryan & Associates, 110 S.E. 6th Street 110 Tower,
Suite 2100, Fort Lauderdale, FL 33301, flor.law-chuckbenson.295019@statefarm.com and
Trelvis. D. Randolph, Esq., Cole, Scatt & Kissane, P.A., 9150 8. Dadeland Blyd., Ste. 1400 P.O.
Box 569015, Miami, FL 33256; trelvis.randolph@esklegal.com; ileana.machado@esklegal.com;
alina. gonzalez@eskJeyal.com.
STEINGER, ISCOE & GREENE, P.A.
2727 NW, 62" Street
Fort Lauderdale, FL 33309
Telephone: (954}.491-7701
Facsimile: (954) 634-8304
Email; thaker@injurylawyers.com
sslater@injurylawyérs:com
mieventhal@injurylawyers:com
Attamey; intiffs
Todd 1 Baker, BAquire
Florida Bar No.; 88181
day of February A, AFiling # 84533456 E-Filed 02/06/2019 04:33:57 PM
IN THE CIRCUIT COURT OF THE
SEVENTEENTH JUDICIAL CIRCUIT IN AND
FOR. BROWARD COUNTY, FLORIDA
THOMAS ROSS, CASE NO,: CACE18000308 (03)
Plaintiff,
Vs:
BRIAN LIEFER AND GEICO
GENERAL INSURANCE COMPANY,
Defendants.
DEFENDANT'S REQUEST FOR COMPULSORY MEDICAL EXAMINATION
If the CME is not cancelled. moré than 72 hours/3 working business days in advance or if
the Plaintiff is a No Show, then a $575.00 tee will apply.
Pursuant to Fla:R.Civ.P. 1.360, the Defendant, BRIAN W. LIEFER (hereinafter
“Defendant”), hereby requests the Plaintiff, THOMAS 'S.-ROSS (hereinafter “Plaintiff"), to have
Plaintiff's physical condition examined as indicated below, and. further requests the Plaintiff to
serve a response within thirty (30) days after service of this Request as provided in the above
Rule:
1 That the Delendant would request the Plaintiff to appear to have Plaintiff's
physical condition examined by an orthopedic physician, Rolando Garcia, M.D. whose address is
230 South Dixie Highway, Hallandale, FL.33009, Telephone 305-937-1999 on April 22,2019 at
3:00 pm.
2. This is a standard orthopedic examination. The Plaintiff will be required to
submit to x-rays. That the above physician will obtain a history of the accident, injuries and
complaints of the Plaintiff; will conduct.a physical examination, including any non-invasive
PLAINTIFE'S |
} EXHIBIT
Atesting which may be necessary, will make a diagnosis of the physical condition of the Plaintiff
and will render opinions concerning the Plaintiff's condition,
3. In the event that the Plaintiff objects to this examination and fails to respond to
this, Request, or fails to permit the examination, the undersigned will move the Court for an
Order under Fla.R.Civ.P. 1.380 to allow said discovery examination.
4, Unless.a timely and valid objection to this Notice is filed within the time set forth
by Rule 1.360, the Plaintiff is required by this Rule to.be in attendance at the above-scheduled
examination.
5. Pursuant to Rule.1,360, if the physician performing the examination is called
as a witness, the physician shall not be identified as one appointed by the Court.
6. The cest of the examination will be originally bore by the Defendant, but is
subject to. taxation by the Court upon proper motion.
7. The Plaintiff is requested to bring to'said examination any X-rays, CT scan films,
MRI films. or other diagnostic test results relating to the alleged injuries that have not
previously been disclosed to the Defendant and defense-counsel.
8. That there is good cause for this Request for the examination in that the
Plaintiff has placed Plaintiff's physical condition in issue and the Defendants have not had
the benefit of such an examination of the physical/mental condition of the Plaintiff.
9, If requested by the party to whom a. request for examination is made; the
party requesting the examination shall deliver to the other party, in accordance with Rule
1,360(b)(1), a copy of a detailed written report setting out the examiner’s findings. Affer
delivery of the detailed written report, the party requesting the examination te be madeshall be entitled upon request to receive from the party to whom. the request for
examination is made a similar report of the same condition previously or thereafter made.
10. Please advise the undersigned if an interpreteris needed.
Vi. Plaintiff must present valid photo identification upon arrival ta the medical
exantination,
CERTIFICATE OF SERVICE
J HEREBY CERTIFY that on February 6, 2019, the foregoing was electronically filed
with the Florida Courts E-Filing Portal and that as a registered participant of the Portal 1 have
effectuated service through the Portal in ¢ompliance with Rule 2.516, Fla. R. Jud. Admin., on
Trelvis D, Randolph, Esq. trelvis.randolph@csklegal.com, ileana.machado@esklegal.com,
alina.gonzalez@csklegal.com, Cole, Scoit & Kissane, P.A., 9150 8, Dadeland Boulevard, Cole,
Scott. & Kissanc Bldg, -Suite 1400, Miami, FL 33256 and Todd L. Baker, Esq.
TBaker@InjuryLawyers.com, Steinger, Iscoe & Greene, P.A., 2727 W Cypress Creek Rd., Fort
Lauderdale, FL 33309.
NICHOLAS J. RYAN & ASSOCIATES
110 S. E. 6th Street, Suite 2100
Fort Lauderdale, FL 3330]
Telephone: (954) 627-9401
E-mail for service (FL R. Jud. Admin, 2.516):
flor.law-chuckbenson.295019@statefarm.com
Charles .E. Benson, Esq,
Florida Bar No.: 974056
Attorney for Defendant, Brian Liefer
Attorneys and Staff of Nicholas J. Ryan &
Associates are Employces of the Law Department of
State Farm Mutual Automobile Insurance Company
cc: Rolando Garcia, M.D,
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Filing # 89498437 E-Filed 05/14/2019 02:12:05 PM JN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA THOMAS ROSS, CASE NO.: CACE18000308 (03) Plaintiff, vs, BRIAN LIEFER AND GEICO GENERAL INSURANCE COMPANY, Defendants’, / DEFENDANTS! RESPONSE TO PLAINTIFE’S OBJECTIONS AT THE COMPULSORY MEDICAL EXAMINATION COMES NOW the Defendant, BRIAN LIEFER, by and through the undersigned counsel, and moves this Honorable Court to Overrule the Plaintiff's objections to the Compulsory Medical Examination, and in support thereof, would allege as follows: 1. This is a lawsuit arising from an automobile accident that occurred on July 15,2016 where the Plaintiff is alleging injuries to her body. 2. The Plaintiff is scheduled for a Compulsory Medical Examination (CME) to have his physical condition examined by an Orthopaedic physician, Rolando Garcia, Ir... M.D. whose address is Orthopedic Care & Sports Medicine, 230 S. Dixie Highway, Hallandale, FL 33009 on June 17, 2019 at 10:15 am. (Attached hereto as Exhibit “A”) 3. The Plaintiff has filed objections as to. the CME. (Attached heréto-as Exhibit “B”) and the Defendant requests that this Court overrule.the objections and allow the CME to go forward. 4. Fhe Plaintiff has sent a proposed agreed order that is subject to the objections that have been filed by the: Plaintiff's lawyer arid. after reviewing said order the Defendant agrees to paragraphs 1, 2, 3, 4,5, 6, 8,9, 10, 11, 12, 14, 15, 16, 17, 18, 19, and 20. +#* FILED. BROWARD. COUNTY FL BRENDA D FORMAN. CLERK 05/14/2019 02:12:05 PML ####5. However, the Defendant does not agree to the Plaintiff's objection. regarding the use of forms and questionnaires. in paragraph 7 of the objections. The use of forms, documents, and pain diagrams.are useful tools.that are customary in the field of medicine. The Plaintiff filled out similar forms, documents and diagrams for het owii doctors without objection. Obviously, there is: no legal objection to the use of forms, questionnaires, or diagrams. These forms:and questionnaires will allow the Plaintiff to fully and completely explain to the doctor what body parts were injured. The forms have already been delivered to Plaintiffs Counsel in advance of the CME. The Plaintiff should be ordered to deliver the required. forms to Dr. Garcia at the CME. The objection contained within. paragraph.7 should be overruled. 6. As to paragraph 13, the Defendant would ask the Court io rule that the following language apply to the CME: “the report shali be senit to Plaintiff's Counsel within 5 days of the receipt of thte report by Defense Counsel. and after Defense Counsel has received a request for the report from the Plaintiffand his Counsel." 7. The response to the objections have been based upon the proposed order that was sent to Defense Counsel on or about April 8, 2019. However, if this-is a miisunderstanding as to what the final objections are from the Plaintiff then the Defendant does not agree to the following paragraphs that are contained withiti the Plaintiff's Objections io Compulsory Examination that were filed on April 8, 2019: paragraphs 3, 4, 5, 6, 7 (a, d, é, f,h, k, D8 (e.g. spouse attending the CME), 13, 14, 15, 16, 18, 19, 23, 28, 29, 30, and 31. 8. In an effort to comply with the local rules regarding hearings the undersigned sent an emai! to Plaintiff's Counsel on April 10,2019. The undersigned has not received a tesponse to the email as of the date of this response. 9. Other grounds to be.argued Ore Tenus.WHEREFORE, Defendant, BRIAN LIEFER, respectfully requests this Honorable Court overrule the objections as seen above, and for further relief as this Honorable Court deems just and necessary. CERTIFICATE OF SERVICE THEREBY CERTIFY that on May 14, 2019, the foregoing was electronically filed with the Florida Courts E-Filing Portal and-that as a registered participant of the Portal I have effectuated:service through the Portal in compliance with Rule 2.516, Fla, R. Jud. Admin., on Trelvis D. Randolph, Esq; trelvis.candolph@esktegal.com, ileana.machado@csklegal.com, alina.gonzalez@csklegal.com, Cole, Scott & Kissane, P:A., 9150 S, Dadeland Boulevard, Cole, Scott & Kissane Bldg. -Suite 1400, Miami, FL.33256 and Todd L.. Baker, Esq. TBaker@InjuryLawyers.com, Steinger, Iscoe & Greene, P.A:, 2727 W Cypress Creek Rd., Fort Lauderdale, FL 33309. NICHOLAS J. RYAN & ASSOCIATES, 110S, E. 6th Street, Suite 2100 Fort Lauderdale, FL, 33301 Telephone: (954) 627-9401 E-mail for service (FL R, Jud. Admin. 2.516): flor.law-chuckbenson,29501 9@statefarm.com Charles E. Benson, Esq. Florida Bar-No.: 974056 Attorney for Defendant, Brian Liefer Atlomeys and Staff of Nicholas J. Ryan & Associates are Employces of the, Law Department of State Farm Mutual: Automobile {nsurance CompanyIN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL. CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA THOMAS ROSS, CASE NO.: CACE18000308 (03) Plaintiff, YS. BRIAN LIEFER AND GEICO GENERAL INSURANCE COMPANY, Defendants, DEFENDANT'S AMENDED SECOND REQUEST FOR COMPULSORY MEDICAL EXAMINATION {Cancels April 22, 2019 per Doctor’s Request) If the CME is not cancelled more than 72 hours/3 working business days in advance or if the Plaintiff is a No Show, then a:$250.00 fee will apply. (Amended as to Time Only) Pursuant to Fla.R.Civ.P. 1.360, the Defendant, BRIAN W. LIEFER (hereinafter Defendant”), hereby requests the Plaintiff, THOMAS S. ROSS (hereinafter “Plaintiff”), to have Plaintiff's physical condition examined as indicated below, and. further requests the Plaintiff to serve a response Within thirty (30) days after service of this Request-as provided in the above Rule: I, That the Defendant would request the’ Plaintiff to appear to have Plaintiff's physical condition examined by an orthopedic physician, Rolando Garcia, M.D. whose address is 230 South Dixie. Highway, Hallandale, FL 33009, Telephone 305-937-1999 on June 17,2019 at 10:15am. 2. This is a standard orthopedic examination. The Plaintiff will be required to submit to x-rays. That the above physician will obtain a history of the accident, injuries: and.complaints of the Plaintiff; will conduct a physical examination, including any non-invasive testing which may be necessary, will make a diagnosis of the physical condition of the Plaintiff and will render opinions concerning the Plaintiff's condition. 3. In the event that the Plaintiff objects to this‘examination and fails to respond. to this Request, or fails“to permit the examination, the undersigned will move the Court. for an Order under Fla.R:Civ.P. 1.380 to allow said discovery examination. 4, Unless a timely and valid objection to this Notice is filed within the time set forth by Rule 1.360, the Plaintiff is required by this Rule to. be in attendance at the above-scheduled examination. 5. Pursuant to Rule 1,360, if the physician performing the examination is called asa witness, the physician shall not be identified as one appointed by the Court. 6. The cost of the examination will be originally borne by the Defendant, but is subject to taxation by the Court upon proper motion. 7. The. Plaintiff is requested to bring to said examination any X-rays, CT scan films, MRI films or other. diagnostic: test resutts relating to thé. alleged injuries that have not previously been disclosed to the Defendant and defense counsel. 8. That there is good cause for this Request for the examination in that the Plaintiff has placed Plaintiff’s physical condition in issue and the Defendants have not had the benefit of such an examination of the physical/mental condition of the Plaintiff. 9. If requested by the party te whom a request for examination is made, the party requesting the examination shall deliver to the other party, in accordance with Rule 1.360(b)(1), a copy of a detailed written report setting out the examiner’s findings. After delivery of the detailed written report, the party réquesting the examination to be madeshall be entifled upon request to receive from the party to whom the request. for examination is made a-similar report of the same condition previously or thereafter made. 10. Please-advise the undersigned if an interpreter is needed. ll. Plaintiff must present valid photo identification upon arrival. to ihe medical examination. CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that on March 1, 2019, the foregoing was electronically filed with the Florida Courts E-Filing Portal and that ag a registered participant of the Portal I have effectuated service through the Portal in compliance with Rule 2.516, Fla. R. Jud. Admin., on Trelvis D, Randolph, Esq. trelvis.randolph@csklegal.com, ileana.machado@esklegal.com, alina.gonzalez@csklegal.com, Cole, Scott & Kissane, P.A., 9150 S. Dadeland. Boulevard, Cole, Scott & Kissane Bldg. -Suite 1400, Miami, FL 33256 and Todd L. Baker, Esq. TBaker@InjuryLawyers.com, Steinger, Iscoe & Greene, P.A., 2727 W Cypress Creek Rd., Fort Lauderdale, FL 33309. NICHOLAS J. RYAN & ASSOCIATES 110 S. E. 6th Street, Suite 2100 Fort Lauderdale, FL 33301 Telephone: (954) 627-9401 E-mail for service (FL R. Jud. Admin..2.516): flor Jaw-chuckbenson.2950 1 9@statefarm.com Charles E. Benson, Esq. Florida Bar No.: 974056 Attorney for Defendant, Brian Liefer Attorneys and Staff of Nicholas J. Ryan ‘& Associates are Employees. of the Law Department of State Farm. Mutual Automobile:Insutance, Company ec: Rolando.Garcia, M.D.Filing 487645567 E-Filed 04/08/2019.04:27:09 PM. IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA THOMAS.ROSS, Plaintiff, CASE NO.: 18-000308 CACE (03) vs. BRIAN LIEFER and GEICO GENERAL TNSURANCE COMPANY, Defendants. PLAINTIFF'S. OBJECTIONS TO COMPULSORY MEDICAL EXAMINATION Plaintiff, THOMAS ROSS, by and through the undersigned. counsel and pursuant to Fla. R. Civ, P. 1.360, files, Objections to Defendant BRIAN LIEFER’s Request for Compulsory Medical Examination, and moves for protective rules governing the examination pursuant:to Fla. R, Ciy..P. 1.360 as follows: 1, Defendant BRIAN LIEFER has requested that the Plaintiff, THOMAS ROSS, submit to a.medical examination, to be performed by Rolando Garcia, M.D. on April 22, 2019. A copy of the Defendant” Request for Compulsory Medical Examination is attached hereto as Exhibit A, 2. Plaintiff should not be.required to provide any documentation to the Compulsory Physical Examination doctor. This is the defense's responsibility. The Plaintiff should not be required. to bring any documents or films, if they exist, to any Compulsory Physical Examination.Ross-v. Licfor Case No: CACE18000368 CA (03) Plaintifl’s Objection to CME. 3. That the Plaintiff not be required. to submit to any additional x-rays or testing, let alone invasive testing such as nerve studies, other than a physical examination. 4, The scope of the examination requires the disclosure of "the. nature of the examination or the extent of testing that. may be performed by the examining. physician.” Schagrin'v, Nacht, 683 So.2d.1173, 1174.(Fla, 4th DCA 1996), It isnot enough to say "any tests that the doctor feels are nécessaty for a complete and thorough examination of the Plaintiff," because the examinee is.“entitled to know the extent-of such tests in order to seek the protection of the court in providing reasonable measures to assure that such testing will not cause injury." ta. The trial court's order does not specify the manner, conditions, or scope of the examination, thereby, in effect; giving the psychologist "carte blanche" to perform any type, and all manner of psychological inquiry, testing, and analysis on [plaintiff] for up to four continuous hours; This violates clearly establislied. principles of law, resulting inva miscarriage of justice. Maddox v. Bullard, 141 So.3d 1264, 1266 (Fla. Sth DCA 2014). Unit the movant specifies the scopé of the requested examination, the: trial court is unable to determine whether the movant has established god cause for each particular examination. "[I]f the trial court. does not know the particular examinations. that the psychologist plaris to conduct, it should not grant ihe’ request." Barry y. Barry; 159 So.3d 306, 308 (Fla. Sth DCA 2015). Although the respondent in its motion does spécifically identify several potential examinations or tests, the language: is open-ended ("make such examinations or tests, incliding ..."), creating merely the appearance of a. specified and limited scope. Under the language: employed. in the motion, the psychiatrist. would be permitted to perform other examinations or adihinister other tests which are.not contained within the specific examples listed. More to the.point, these niay include examinations or tests which the trial court may not. have considered (or intended to permit) in its determination of good cause.Ross v. Licfer Case-No: CACE18000308 CA (03) Plaintiff's Objection.te CME Espinosa v. D.H. Griffin Construction Co, LLC., 42: Fla. 'L, Weekly D857, D858 (Fla. 3d DCA 4/6/16). Accordingly, any testing not. specifically identified in the Notice and authorized by the Court should not be permitted. 5; That the Plaintiff not be required to complete any forms upon arrival at the Compulsory Physical Examination doctor's office. Plaintiff should only be required to provide the Compulsory Physical-Examination doctor with his/her name. 6. The Compulsory Physical: Examination is not a deposition. The defense has the opportunity to provide the depdsition of the Plaintiff, Plaintiff's Answets to. Interrogatoiies, and the Plaintiff's medical records. Accordingly, there is no good cause permitting the Compulsory Physical Examination doctor to: coriduct extensive oral or written questioning of the Plaintiff. The sole purpose of these and similar inquiries is to create a contradiction-and have the CME opine. that Plaintiff was not frank, honest, credible or truthful, which is inappropriate. 7 Similarly, that the Compulsory Physical Examination doctor not be allowed to-ask any questions regarding: a. The Plaintiff's past medical history, other than specific: questions regarding the nature of the Plaintiff's current symptoms, along with the onsét, intensity ard duration of such symptoms; ' The CME retained expert by Defendant should not be permitted to staté personal opinions about the Plaintiff. Iris error to state personal opinions about the merits of the case or. credibility of the Plaintiff, Wasden v. Seaboard Coast Line Railroad Co, 474 So.2d 825 (Fla. 2d DCA 1985), rev. den. 484 So,2d 9 (Fla. 1986); Moore-y. Taylor Concrete & Supply Co., Inc., 553 So0.2d 787 (Fla. ist DCA 1989); Blue Grass Shows, Inc..v. Collins, 614 So.2d 626 (Fla. 1 DCA 1993), rev. den. 624 So.2d 264 (Fla. 1993); Nelson v. Reliance Ins. Co., 368 So.2d 361 la, 4" DCA 1978); Riley v. Willis. 585 So.2d 676, (Fla. 1" DCA 1995)sv: Li Case No: CACE18000308 CA (03) Plaintiff's Objection to CME b. The Plaintiff's version of how the accident happened, other than to describe the impact; The possible adversary status of the examining doctor for the defense. is, under ordinary circumstances, a compelling. reason to permit plaintiffs. counsel to be present to guarantee, for example, that the doctor does not interrogate the plaintiff on liability questions in order to scek damaging admissions. Bartell v. MeCarrick, 498 So.2d 1378, 1380 (Fla. 4th DCA 1986) (emphasis.added). c. Timing as.to when the Plaintiff retained an attorney,. Watson v.. Builder's Square, 563 So.2d 721 (Fla, 4th DCA 1990); d. Who referred the Plaintiff'to any particular doctor or other health care providers, Burt v. GEIGO, 603 So.2d 125 (Fla. 2d DCA 1992); ¢. Statements that the Plaintiff may have made. to others about the accident-or about Plaintiff's injuries (such as: police-officers, EMT personnel, hospital personnel, doctors, etc.); f. Details.of prior accidents that the Plaintiff may have been involved in; g, Timing as to when the Plaintiff first saw a doctor, or other health care provider in relation to this accident; h. The Plaintiff's prior work history; and i, “What did the doctor teil you?" questions. j. who was at faultRoss‘y, Liefer Case No: CACE18000308 CA (03) Plaintiff's Objection ta. CME k. property damage I. what anyone did or did not do at the.scene m. who referred the Plaintiff to or how Plaintiff selected counsel, 8. Plaintiffs counsel, Plaintiffs spouse or other Plaintiffs representative be permitted fo attend the Compulsory Physical Examination, if Plaintiff so desires. Bartell v. MeCarrick, 498 So.2d 1378 (Fla. 4th DCA 1986). Plaintiff objects to anyone else attending his/her compulsory medical examination. This specifically means that neither Defendant, its attomey; or any insurance company representative may appear at the compulsory medical examination. Prince v. Mailari, 36 So.3d'128 (Fla. 5 DCA 2010);Ruiz v. Carpio, 99 $o.3d 516. (Fla-3d DCA 2011); Broyles vs. Reilly, 695 So.2d 832 (Fla. 2d DCA 1997); Chavez vs. J&L Drywall, 858 So.2d'1266 (Fla. 1 DCA 2003). 9. The examination may be visually and/or audibly recorded ‘by Plaintiff including but not Jimited to stenographical, digital, film and/or analog methods, if such is desired by Plaintiff's counsel. Pastore v. Cerese, 556 So:2d 1235 (Fla. 2d DCA 1990) (citing Stakley v, Alistate ins, Co., 547 So.2d 275 (Fla. 2d DCA 1989)). 10. A court reporter and/or a videographer shall be allowed to. attend Compulsory Physical Examination, if such is desired by Plaintiff's counsel. U.S, Sec., Ins., Co. v. Cimino, 754 So.2d 697 (Fla, 2000). Any such recording or transcript shall not be discoverable by Defendant. unless Plaintiff decides to° use it at. trial. Maguire v, Pool Doctor of Palm Beaches, Inc., 23 $0.3d 865, (Fla. 4th DCA 2009) (citing McGarrah v. Bayfront Med. Ctr., Inc., 889 So.2d 923 (Fla. 2d DCA 2004)). For the same reasons; Defendant should not mention that the video was taken if it is not. disclosed. Id.s¢ No: CACE8000308 CA (03) Plaintiff's Objection to-CME 11. The Compulsory Physical Examination examiner shal] not commence the examination prior to the appointed time or without the attendance of Plaintiff's counsel, representative, court reporter, and/or videographer as set forth above. 12, Defense examiner ‘shall not block the video camera or otherwise obstruct the recording of the examination. 13. The Compulsory Physical Examination doctor be required to prepare a detailed written report setting forth al! the Compulsory: Physical Examination doctor's findings, including results of all tests made, diagnosis, and conclusions, with similar reports of all earlier examinations of the same condition. 14, The Compulsory Physical Examination doctors detailed written report be prepared within. ten. (10) days of the examination and be simultaneously furnished to defense counsel and the undersigned. 15. Pursuant to Swarez-Burgos v. Morhaint, 745 So.2d 368 (Fla. 4th DCA. 1999), Plaintiff will rely upon the Compulsory Physical Exaniination doctor's. detailed written report. Plaintiff moves that the Compulsory Physical Examination. doctor not be ‘allowed to change; alter, or amend the opinions set forth in.the Compulsory Physical Examination repori during any testimony he gives concerning the Plaintiff. 16. At trial, that the Compulsory Physical Examination doctor not be allowed to testify and-opine that the Plaintiff gave him an inaccurate. history, or omitted telling him certain matters concerning Plaintiff's medical history, or that Plaintiff lied to the Compulsory Physical Examination doctor.ACE18000308 CA (03) Plaintiff's Objection to CME 17, That the examination not be referred to as an."Independent Medical Examination” or any other designation or description that suggests impartiality on the behalf of the Compulsory Physical Examination doctor. 18. That all defendants be liniited to. one examination. 19. ‘The Compulsory Physical. Examination doctor must retain all documentation, records, recordings, notes emails or other records obtained, created, provided or otherwise ever possessed by him/her in connection with Plaintiff-or this case. This includes any patient or examinee sign-in sheet with patient and examinee names redacted for at least the day of the examination: 20, The examiner shoutd be réquired to provide a statement of his fees: for such examinations and regular patients, a list of his litigation experience in the past three years and the materials set forth in Boecher v. Allstate, and Fla, R. Civ. P. 1.280(b)(4). 21, Plaintiff objects. to any attempt to shift the. expense of said examination to Plaintiff, including should the examination need to be changed or cancelled. Plaintiff shall not be responsible for any disruption fees absent express order of the Court ptedicated upon Motion and Hearing thereon. 22. Plaintiff will be excused from attending ‘said’éxamination after waiting thirty (30) minutes after the time the Compulsory Physical Examination was scheduled to commence: 23. This examination date and.time. was not coordinated with Plaintiff, It is unknown at this time whether Plaintiff is available at that time. 24, Plaintiff shall not be required to disrobe or do anything embarrassing including, but not limited to changing into a surgical gown.Ross v.-Liefer Case No: CACE18000308 CA (03) Plaintiff's Objection ta CME 25. Defense examiner shall not ask Plaintiff rhetorical or similar questions designed to-cause Plaintiff to question the medical advice of his healthcare providers or decisions made by him i.e. “Don't you think it would be a good idea..." 26. Defense examiner shall not make statements to Plaintiff during. the examination about what he would have done or would do under the circumstances. 27. The entire examination from tiie Plaintiff is taken from the lobby until he/she is able to leave, shall -be no more than 90-minuites. 28. Defense examiner shall not be permitted to criticize the decisions of Plaintiff's medical care providers-including but not limited to opining that he would not have.perfotmed the surgery, that it was not reasonable or necessary, or that anyone was medically negligent. Dungan v, Ford, 632 So. 2d 159 (Fla. lst DCA 1994); Stuart v. Hertz, 351-Se. 2d 703 (Fla, 1977). 29. The CME. examiner should be required to produce at least ten copies of his own bills (redacted of dates and personally identifiable information and which include the amount charged irrespective of contractual discounts or adjustments) and those of his practice for cach and every procedure that he opinions the bills incurred by Plaintiff were not reasonable. 30. The CME examiner should be required to identify the name of each and every provider in the local area whose bills he has reviewed (whether relied upon or not) for-the same or substantially similar procedures: that he opines. the bills incurred by Plaintiff were not reasonable. 31. The CME examiner should be required to carry malpractice insurance, 32. The defense attorney noticing the examination shall provide a copy hereof and/or any Orderentered pertaining hereto to the examiner,x, Ligfer Ci io: CACE 18000308 CA (03) Plaintiff's Objection to CME. 33. This terms and conditions apply to any rescheduled dale or location, and any change of examiner. Any orders entered with respect to this examination shall apply to any rescheduled examination arid any substitute Compulsory Physical Examination physician. 34. The examiner’shall not mention the'ternis, limitations or condition of this Order at trial. 35. The examiner shall be deposed in the county. where the examination takes place. absent agreement of the parties to another location. If the examiner contends. that he has an office in a county, he should:make himself available for deposition in that county. WHEREFORE. Plaintiff, THOMAS ROSS, respectfully requests the Court sustain Plaintiff's‘ Objections to the examination and to grant such other relief as the Court deenis just under the circumstances. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and cotrect copy of the foregoing has been electronically filed and served’ through the e-filing portal en this 3 i. 2019 to: Charles Benson, Esq., Nicholas J. Ryan & Associates, 110 S.E. 6th Street 110 Tower, Suite 2100, Fort Lauderdale, FL 33301, flor.law-chuckbenson.295019@statefarm.com and Trelvis. D. Randolph, Esq., Cole, Scatt & Kissane, P.A., 9150 8. Dadeland Blyd., Ste. 1400 P.O. Box 569015, Miami, FL 33256; trelvis.randolph@esklegal.com; ileana.machado@esklegal.com; alina. gonzalez@eskJeyal.com. STEINGER, ISCOE & GREENE, P.A. 2727 NW, 62" Street Fort Lauderdale, FL 33309 Telephone: (954}.491-7701 Facsimile: (954) 634-8304 Email; thaker@injurylawyers.com sslater@injurylawyérs:com mieventhal@injurylawyers:com Attamey; intiffs Todd 1 Baker, BAquire Florida Bar No.; 88181 day of February A, AFiling # 84533456 E-Filed 02/06/2019 04:33:57 PM IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR. BROWARD COUNTY, FLORIDA THOMAS ROSS, CASE NO,: CACE18000308 (03) Plaintiff, Vs: BRIAN LIEFER AND GEICO GENERAL INSURANCE COMPANY, Defendants. DEFENDANT'S REQUEST FOR COMPULSORY MEDICAL EXAMINATION If the CME is not cancelled. moré than 72 hours/3 working business days in advance or if the Plaintiff is a No Show, then a $575.00 tee will apply. Pursuant to Fla:R.Civ.P. 1.360, the Defendant, BRIAN W. LIEFER (hereinafter “Defendant”), hereby requests the Plaintiff, THOMAS 'S.-ROSS (hereinafter “Plaintiff"), to have Plaintiff's physical condition examined as indicated below, and. further requests the Plaintiff to serve a response within thirty (30) days after service of this Request as provided in the above Rule: 1 That the Delendant would request the Plaintiff to appear to have Plaintiff's physical condition examined by an orthopedic physician, Rolando Garcia, M.D. whose address is 230 South Dixie Highway, Hallandale, FL.33009, Telephone 305-937-1999 on April 22,2019 at 3:00 pm. 2. This is a standard orthopedic examination. The Plaintiff will be required to submit to x-rays. That the above physician will obtain a history of the accident, injuries and complaints of the Plaintiff; will conduct.a physical examination, including any non-invasive PLAINTIFE'S | } EXHIBIT Atesting which may be necessary, will make a diagnosis of the physical condition of the Plaintiff and will render opinions concerning the Plaintiff's condition, 3. In the event that the Plaintiff objects to this examination and fails to respond to this, Request, or fails to permit the examination, the undersigned will move the Court for an Order under Fla.R.Civ.P. 1.380 to allow said discovery examination. 4, Unless.a timely and valid objection to this Notice is filed within the time set forth by Rule 1.360, the Plaintiff is required by this Rule to.be in attendance at the above-scheduled examination. 5. Pursuant to Rule.1,360, if the physician performing the examination is called as a witness, the physician shall not be identified as one appointed by the Court. 6. The cest of the examination will be originally bore by the Defendant, but is subject to. taxation by the Court upon proper motion. 7. The Plaintiff is requested to bring to'said examination any X-rays, CT scan films, MRI films. or other diagnostic test results relating to the alleged injuries that have not previously been disclosed to the Defendant and defense-counsel. 8. That there is good cause for this Request for the examination in that the Plaintiff has placed Plaintiff's physical condition in issue and the Defendants have not had the benefit of such an examination of the physical/mental condition of the Plaintiff. 9, If requested by the party to whom a. request for examination is made; the party requesting the examination shall deliver to the other party, in accordance with Rule 1,360(b)(1), a copy of a detailed written report setting out the examiner’s findings. Affer delivery of the detailed written report, the party requesting the examination te be madeshall be entitled upon request to receive from the party to whom. the request for examination is made a similar report of the same condition previously or thereafter made. 10. Please advise the undersigned if an interpreteris needed. Vi. Plaintiff must present valid photo identification upon arrival ta the medical exantination, CERTIFICATE OF SERVICE J HEREBY CERTIFY that on February 6, 2019, the foregoing was electronically filed with the Florida Courts E-Filing Portal and that as a registered participant of the Portal 1 have effectuated service through the Portal in ¢ompliance with Rule 2.516, Fla. R. Jud. Admin., on Trelvis D, Randolph, Esq. trelvis.randolph@csklegal.com, ileana.machado@esklegal.com, alina.gonzalez@csklegal.com, Cole, Scoit & Kissane, P.A., 9150 8, Dadeland Boulevard, Cole, Scott. & Kissanc Bldg, -Suite 1400, Miami, FL 33256 and Todd L. Baker, Esq. TBaker@InjuryLawyers.com, Steinger, Iscoe & Greene, P.A., 2727 W Cypress Creek Rd., Fort Lauderdale, FL 33309. NICHOLAS J. RYAN & ASSOCIATES 110 S. E. 6th Street, Suite 2100 Fort Lauderdale, FL 3330] Telephone: (954) 627-9401 E-mail for service (FL R. Jud. Admin, 2.516): flor.law-chuckbenson.295019@statefarm.com Charles .E. Benson, Esq, Florida Bar No.: 974056 Attorney for Defendant, Brian Liefer Attorneys and Staff of Nicholas J. Ryan & Associates are Employces of the Law Department of State Farm Mutual Automobile Insurance Company cc: Rolando Garcia, M.D,