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Filing # 92130202 E-Filed 07/05/2019 02:16:56 PM
IN THE CIRCUIT COURT OF THE SEVENTEENTH
JUDICIAL CIRCUIT, IN AND FOR BROWARD
COUNTY, FLORIDA.
CASE NO: CACE-18-001242
BRIAN WILLIAM GARLAND,
Plaintiff,
vs.
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY, a Foreign
Corporation,
Defendant.
MOTION TO COMPEL ANSWERS/BETTER ANSWERS TO
DEFENDANT, STATE FARM’s APRIL 5, 2019 EXPERT INTERROGATORIES,
EXPERT REQUEST TO PRODUCE, AND TRIAL INTERROGATORIES
Defendant, State Farm Mutual Automobile Insurance Company (“State Farm”),
pursuant to the applicable Rules of Procedures, and the authority cited below, moves this
Court for an order compelling the Plaintiff, Brian Garland (“Garland”), to make
answers/better answers to expert interrogatories, expert request to produce, and trial
interrogatories.
As grounds, the Court is shown:
1 This is an action for bodily injury.
2. By his Fact and Expert Witness List, the Plaintiff has scheduled as a
“treating expert” Harold Bach, MD (Exhibit 1, Item 4) in part, reciting that Bach will
render testimony “regarding...cause” (presumably regarding Garland’s claimed injuries).
1
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 07/05/2019 02:16:56 PM.****3. In fact, in what is captioned “Preliminary Statements”, Garland claims a
distinction between treating physicians and expert witnesses, but goes on to indicate that
“Treating Experts” (such as Dr. Bach) “will testify regarding...the issue of causation; the
issue of permanency; the issue of future care...”.
4, By the above-mentioned “Preliminary Statements”, Garland recites there is
“a distinction between treating physicians and expert witnesses”, indicating that the
distinction is explained in the form of a footnote (but not including any footnote). By the
Preliminary Statements Garland acknowledges that the treating experts’ opinions “are not
generally contained in records...but are developed through deposition or trial testimony”.
5. In fact, a major point of this motion is that Bach’s “medical-legal
opinions”, including causation and, if appropriate, permanency, are not contained in any
of his medical records.
6. Nonetheless, in his answers to State Farm’s Expert Interrogatories (Exhibit
2) Garland, in 16 instances, answers Boecher-type questions by reciting that:
“Plaintiff has not retained an expert witness for purpose of
and/or in anticipation of preparing for litigation”.
7. In response to State Farm’s Expert Request to Produce (Exhibit 3) Garland
has, among other things, denied that there has been any correspondence between
himself/his attorneys and Bach/Bach’s agents (Item 3), and has indicated that Bach has
not reviewed any records (presumably including his own, not to mention other treating
providers) in order to testify.
N8. Garland’s answers to State Farm’s Trial Interrogatories, appended as
Exhibit 4, and are nonresponsive/inadequate with respect to questions/answers 2, 3 and 9.
9. With respect to answers to Expert Interrogatories and Expert Request to
Produce, Garland apparently labors under the misconception that a treating physician,
who a plaintiff contemplates will testify regarding issues of causation and permanency is
not an expert witness with respect to whom “expert” discovery needs to be
answered/responded to.
10. This is a misconception per our district court’s decision in Walerowicz v.
Armand-Hosang, 248 So.3d 140 (Fla. 4" DCA 2018).
11. Opposing counsel is being contacted contemporaneous with the filing of
this motion in order to avoid the need to call it up for hearing.
WHEREFORE, Defendant, State Farm Mutual Automobile Insurance Company,
moves this Court for an order compelling the Plaintiff to make a response/better response
to discovery, as outlined above, especially well before the time of Dr. Bach’s trial
testimony, including if that trial testimony is by videotape. In the alternative, State Farm
moves that Dr. Bach be stricken as an “expert” witness as a sanction for Brian Garland’s
failure to respond to discovery requests calculated to lead to that part of his testimony
that would be “expert”.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing has been sent, via Florida
E-Portal thi day of July, 2019 to Nicholas Van Valen, Esq., THE SCHILLER,KESSLER GROUP, PLC, 7501 West Oakland Park Boulevard, Second Floor, Ft.
Lauderdale, FL 33319; efile@injuredinflorida.com.
FLAN, MANIOTIS, P.A.
Attorneys for Defendant
86 Forest Hill Boulevard
West Palm Beach, FL 33406
PFlanaganEsq@gmail.com
(561) 964-7501 / (561) 964-8025 (fax)
/
ATRICK B. FLANAGAN, ESQ.
[i Bar No.: 449350
/
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Filing # 92130202 E-Filed 07/05/2019 02:16:56 PM IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA. CASE NO: CACE-18-001242 BRIAN WILLIAM GARLAND, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a Foreign Corporation, Defendant. MOTION TO COMPEL ANSWERS/BETTER ANSWERS TO DEFENDANT, STATE FARM’s APRIL 5, 2019 EXPERT INTERROGATORIES, EXPERT REQUEST TO PRODUCE, AND TRIAL INTERROGATORIES Defendant, State Farm Mutual Automobile Insurance Company (“State Farm”), pursuant to the applicable Rules of Procedures, and the authority cited below, moves this Court for an order compelling the Plaintiff, Brian Garland (“Garland”), to make answers/better answers to expert interrogatories, expert request to produce, and trial interrogatories. As grounds, the Court is shown: 1 This is an action for bodily injury. 2. By his Fact and Expert Witness List, the Plaintiff has scheduled as a “treating expert” Harold Bach, MD (Exhibit 1, Item 4) in part, reciting that Bach will render testimony “regarding...cause” (presumably regarding Garland’s claimed injuries). 1 *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 07/05/2019 02:16:56 PM.****3. In fact, in what is captioned “Preliminary Statements”, Garland claims a distinction between treating physicians and expert witnesses, but goes on to indicate that “Treating Experts” (such as Dr. Bach) “will testify regarding...the issue of causation; the issue of permanency; the issue of future care...”. 4, By the above-mentioned “Preliminary Statements”, Garland recites there is “a distinction between treating physicians and expert witnesses”, indicating that the distinction is explained in the form of a footnote (but not including any footnote). By the Preliminary Statements Garland acknowledges that the treating experts’ opinions “are not generally contained in records...but are developed through deposition or trial testimony”. 5. In fact, a major point of this motion is that Bach’s “medical-legal opinions”, including causation and, if appropriate, permanency, are not contained in any of his medical records. 6. Nonetheless, in his answers to State Farm’s Expert Interrogatories (Exhibit 2) Garland, in 16 instances, answers Boecher-type questions by reciting that: “Plaintiff has not retained an expert witness for purpose of and/or in anticipation of preparing for litigation”. 7. In response to State Farm’s Expert Request to Produce (Exhibit 3) Garland has, among other things, denied that there has been any correspondence between himself/his attorneys and Bach/Bach’s agents (Item 3), and has indicated that Bach has not reviewed any records (presumably including his own, not to mention other treating providers) in order to testify. N8. Garland’s answers to State Farm’s Trial Interrogatories, appended as Exhibit 4, and are nonresponsive/inadequate with respect to questions/answers 2, 3 and 9. 9. With respect to answers to Expert Interrogatories and Expert Request to Produce, Garland apparently labors under the misconception that a treating physician, who a plaintiff contemplates will testify regarding issues of causation and permanency is not an expert witness with respect to whom “expert” discovery needs to be answered/responded to. 10. This is a misconception per our district court’s decision in Walerowicz v. Armand-Hosang, 248 So.3d 140 (Fla. 4" DCA 2018). 11. Opposing counsel is being contacted contemporaneous with the filing of this motion in order to avoid the need to call it up for hearing. WHEREFORE, Defendant, State Farm Mutual Automobile Insurance Company, moves this Court for an order compelling the Plaintiff to make a response/better response to discovery, as outlined above, especially well before the time of Dr. Bach’s trial testimony, including if that trial testimony is by videotape. In the alternative, State Farm moves that Dr. Bach be stricken as an “expert” witness as a sanction for Brian Garland’s failure to respond to discovery requests calculated to lead to that part of his testimony that would be “expert”. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing has been sent, via Florida E-Portal thi day of July, 2019 to Nicholas Van Valen, Esq., THE SCHILLER,KESSLER GROUP, PLC, 7501 West Oakland Park Boulevard, Second Floor, Ft. Lauderdale, FL 33319; efile@injuredinflorida.com. FLAN, MANIOTIS, P.A. Attorneys for Defendant 86 Forest Hill Boulevard West Palm Beach, FL 33406 PFlanaganEsq@gmail.com (561) 964-7501 / (561) 964-8025 (fax) / ATRICK B. FLANAGAN, ESQ. [i Bar No.: 449350 /