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Filing # 97573383 E-Filed 10/21/2019 10:22:55 AM
IN THE CIRCUIT COURT OF THE 11™
JUDICIAL CIRCUIT IN AND FOR MIAMI-
DADE COUNTY, FLORIDA
CASE NO.: 2019-008931-CA-01 (02)
LAMAR MITCHELL,
Plaintiff,
v.
MIAMI-DADE COUNTY,
Defendant.
PLAINTIFF'S OBJECTION TO REQUEST FOR COMPULSORY MEDICAL EXAMINATION
Plaintiff, LAMAR MITCHELL, by and through the undersigned counsel, hereby files the
following objection to Defendant’s Request for a Compulsory Medical Examination under Certificate of
Service date October 18", 2019, and files her objections to same pursuant to Fla.R.Civ.P. 1.360(a)(3), and
states as follows:
1. The Defendant has requested that Plaintiff submit to a medical examination to be performed
by Dr. Jay Stein (hereinafter “examiner”) on December 10, 2019. A copy of the Defendant’s
Request is attached hereto as “Exhibit A.”
2. Plaintiff objects to the Request for Compulsory Medical Examination as the Defendant has
failed to specify the manner, conditions and scope of the examination as required by Fla. R.
Civ. P. 1.360(a)(3). The Defendant has merely stated “The exam shall be performed in the
usual manner to assess the physical condition of Plaintiff with respect to all conditions and
injuries claimed in the present lawsuit.”
3. Plaintiff shall not be asked to produce or provide any records, films or other documentation to
the examiner.
4. Plaintiff objects to any requirement by the examiner to complete any intake forms,
paperwork, diagrams, illustrations, or questionnaires, other than to provide identifyinginformation_and_provide sufficient proof of identity and other demographic information.
(e.g., driver’s license or other picture-identification).
Plaintiff shall be allowed to bring her attorney, a court reporter, and a videographer to the exam.
Plaintiff will not pay any additional fee for exercising her legal right to have third parties of her
choosing at said examination. Pastore v. Cerese, 556 So. 2d 1235, 1235 (Fla. 2d DCA 1990);
Stakley v. Allstate Ins. Co., 547 So. 2d 275, 275 (Fla. 2d DCA 1989); High v. Burrell, 509 So. 2d
385, 385 (Fla. 9th DCA 1987); Bartell v. McCarrick, 498 So. 2d 1378, 1380 (Fla. 4th DCA
1986); Broyles v. Reilley, 695 So.2d 832 (Fla. 2d DCA 1997); Prince v. Mallari, 36 So. 3d 128
(Fla. Sth DCA 2010).
Plaintiff objects to any person or entity attending the exam on behalf of Defendant, except the
examiner. Chavez v. J & L Drywall, 858 So. 2d 1266 (Fla. Ist DCA 2003); Gibson v. Gibson,
456 So. 2d 1320 (Fla. 4th DCA 1984).
The videotape of the exam taken at the direction of Plaintiff's counsel shall remain work-
product of Plaintiff’s attorney unless and until Plaintiff waives the privilege by listing same
on a trial exhibit list, and upon written request and pre-payment of copying costs, Defendants
shall be entitled to the videotape upon such waiver under Byrd v. Southern Prestressed
Concrete, Inc., 928 So. 2d 455 (Fla. 1st DCA 2008) and McGarrah v. Bayfront Medical
Center, Inc., 889 So. 2d 923 (Fla. 2d DCA 2004).
The transcript of the exam taken at the direction of Plaintiff's counsel shall remain work-
product of the Plaintiffs attorney unless and until Plaintiff waives the privilege by listing
same on a trial exhibit list, and upon written request and pre-payment of copying costs,
Defendants shall be entitled to a copy of the transcript upon such waiver under Maguire v.
Pool Doctor of Palm Beaches, Inc., 23 So. 3d 865 (Fla. 4th DCA 2009).
Defendants shall not be allowed to videotape or transcribe the examination. Prince v. Mallari,
36 So. 3d 128 (Fla. Sth DCA 2010).10. The examiner shall not ask Plaintiff if her attorney referred him to any doctor, no reference to any
such referral shall appear in the exam report, and the examiner shall not report, opine, or testify to
any such referral. Burt v. GEICO, 603 So. 2d 125 (Fla. 2d DCA 1992).
11. The examiner shall not ask Plaintiff when he hired or retained a lawyer, no reference to the
hiring of a lawyer shall appear in the exam report, and the examiner shall not report, opine, or
testify regarding Plaintiff's hiring of a lawyer. Watson v. Builders Square, 563 So. 2d 721
(Fla. 4th DCA 1990).
12. Plaintiff shall not be required to submit to any new x-rays as part of the examination if Plaintiff
has had x-rays that are not older than one year for the body part(s) to be examined during the exam.
Defense counsel is responsible for providing such new x-rays to the examiner. In addition, within
thirty (30) days of the completion of the examination, Defendants shall produce to counsel for
Plaintiff copies of any new x-rays that were taken as part of the examination.
13. The examiner must prepare a detailed written report setting out all of his findings, including
results of all tests made, diagnosis and conclusions, pursuant to Florida Rule of Civil Procedure
1.360(b)(1).
14. Defendant shall furnish the CME report to Plaintiff's counsel that sets forth all of the
examiner’s findings and opinions within thirty (30) days of the date of the examination.
15. The CME report shall not be admitted into evidence at any proceeding in this case. McElroy
v. Perry, 753 So. 2d 121 (Fla. 2d DCA 2000).
16. The examination shall commence at the designated time and Plaintiff shall not wait longer than
thirty (30) minutes before being seen by the medical examiner.
WHEREFORE, the Plaintiff, LAMAR MITCHELL, files his objection to Defendant’s Request for
Neurological Compulsory Medical Examination on the aforementioned grounds, and requests a copy of an
x-rays, and of the CME report within thirty (30) days of the date of examination.CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing has been furnished to all counsel of record
s7
via electronic mail Served by the Florida E-Portal this Z ( day of O 106K , 2019.
By:
Andres Hérmida, Esq.
FBN: 1010725
MORGAN & MORGAN, P.A.
Attorneys for Plaintiff
703 Waterford Way, Suite 1050
Miami, FL 33126
Telephone: 305-929-1901
Facsimile: 305-929-1944
AHermida@forthepeople.com
JJaime@forthepeople.comCounsel for Defendant
Daniel Frastai, Esq.
FBN: 0666041
Assistant County Attorney
111 Northwest First Street
Miami, FL 33128
Frastai@miamidade.gov
Jeane.Neal@miamidade.gov
Nicole Ramos-Barreau, Esq.
FBN: 85291
Assistant County Attorney
111 Northwest First Street
Miami, FL 33128
Nicole.ramos-barreau@miamidade.gov
Monica.Barber@miamidade.gov
SERVICE LISTFiling # 97508241 E-Filed 10/18/2019 11:47:28 AM
IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE COUNTY, FLORIDA
LAMAR MITCHELL, GENERAL JURISDICTION DIVISION
Plaintiff(s), CASE NO. 19-8931 CA 01 (02)
v.
MIAMI-DADE COUNTY,
Defendant(s).
MIAMI-DADE COUNTY’S
REQUEST FOR EXAMINATION OF PLAINTIFF
Defendant MIAMI-DADE COUNTY, by and through undersigned counsel, and pursuant to
Florida Rule of Civil Procedure 1.360, requests that Lamar Mitchell submit to a Physical
examination as set forth below:
Name of Doctor: Dr. Jay Stein
Orthopaedist
Date: December 10.2019
Time: 10:30a.m.
Location: 9999NE2™ Avenue Suite 311A Miami Shores, FL 33138
Telephone: 305-751-2850
Manner, Conditions The exam shall be performed in the usual manner to
and Scope: assess the physical condition of Plaintiff with respect to
all conditions and injuries claimed in the present lawsuit.
1. Plaintiff shall serve a response within 30 days after service of this request, which
shall state that the examination is permitted as requested unless objected to, in which event the
reasons for the objection shall be stated.
2. Plaintiff is invited to provide any medical records, x-rays, or any other documents
which would assist the Doctor in the examination.
OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE 305.375.5151
EXHIBIT "A"LAMAR MITCHELL v. MIAMI-DADE COUNTY
Case No. 19-8931CA 01 (02)
3. Plaintiff is hereby advised that a disruption fee may be incurred if the Plaintiff fails to
appear as scheduled or fails to give notice of cancellation within seven days of the examination.
CERTIFICATE OF SERVICE
I CERTIFY that the foregoing document has been e-mailed to all the parties of record on
October 18, 2019 to the e-mail address(es) each has registered with the Florida Courts E-Filing
Portal.
Respectfully submitted,
ABIGAIL PRICE-WILLIAMS
Miami-Dade County Attomey
Attorney for Defendant Miami-Dade County
Stephen P. Clark Center, Suite 2810
111 Northwest First Street
Miami, Florida 33128-1993
By:_/s/ Daniel Frastai
Daniel Frastai
Assistant County Attorney
Florida Bar Number 0666041
Telephone: (305) 375-5480
Fax: (305) 375-5634
Email: Frastai@miamidade.gov
jeane.neal@miamidade.gov
Page 2
OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA
TELEPHONE 305.375.5151
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Filing # 97573383 E-Filed 10/21/2019 10:22:55 AM IN THE CIRCUIT COURT OF THE 11™ JUDICIAL CIRCUIT IN AND FOR MIAMI- DADE COUNTY, FLORIDA CASE NO.: 2019-008931-CA-01 (02) LAMAR MITCHELL, Plaintiff, v. MIAMI-DADE COUNTY, Defendant. PLAINTIFF'S OBJECTION TO REQUEST FOR COMPULSORY MEDICAL EXAMINATION Plaintiff, LAMAR MITCHELL, by and through the undersigned counsel, hereby files the following objection to Defendant’s Request for a Compulsory Medical Examination under Certificate of Service date October 18", 2019, and files her objections to same pursuant to Fla.R.Civ.P. 1.360(a)(3), and states as follows: 1. The Defendant has requested that Plaintiff submit to a medical examination to be performed by Dr. Jay Stein (hereinafter “examiner”) on December 10, 2019. A copy of the Defendant’s Request is attached hereto as “Exhibit A.” 2. Plaintiff objects to the Request for Compulsory Medical Examination as the Defendant has failed to specify the manner, conditions and scope of the examination as required by Fla. R. Civ. P. 1.360(a)(3). The Defendant has merely stated “The exam shall be performed in the usual manner to assess the physical condition of Plaintiff with respect to all conditions and injuries claimed in the present lawsuit.” 3. Plaintiff shall not be asked to produce or provide any records, films or other documentation to the examiner. 4. Plaintiff objects to any requirement by the examiner to complete any intake forms, paperwork, diagrams, illustrations, or questionnaires, other than to provide identifyinginformation_and_provide sufficient proof of identity and other demographic information. (e.g., driver’s license or other picture-identification). Plaintiff shall be allowed to bring her attorney, a court reporter, and a videographer to the exam. Plaintiff will not pay any additional fee for exercising her legal right to have third parties of her choosing at said examination. Pastore v. Cerese, 556 So. 2d 1235, 1235 (Fla. 2d DCA 1990); Stakley v. Allstate Ins. Co., 547 So. 2d 275, 275 (Fla. 2d DCA 1989); High v. Burrell, 509 So. 2d 385, 385 (Fla. 9th DCA 1987); Bartell v. McCarrick, 498 So. 2d 1378, 1380 (Fla. 4th DCA 1986); Broyles v. Reilley, 695 So.2d 832 (Fla. 2d DCA 1997); Prince v. Mallari, 36 So. 3d 128 (Fla. Sth DCA 2010). Plaintiff objects to any person or entity attending the exam on behalf of Defendant, except the examiner. Chavez v. J & L Drywall, 858 So. 2d 1266 (Fla. Ist DCA 2003); Gibson v. Gibson, 456 So. 2d 1320 (Fla. 4th DCA 1984). The videotape of the exam taken at the direction of Plaintiff's counsel shall remain work- product of Plaintiff’s attorney unless and until Plaintiff waives the privilege by listing same on a trial exhibit list, and upon written request and pre-payment of copying costs, Defendants shall be entitled to the videotape upon such waiver under Byrd v. Southern Prestressed Concrete, Inc., 928 So. 2d 455 (Fla. 1st DCA 2008) and McGarrah v. Bayfront Medical Center, Inc., 889 So. 2d 923 (Fla. 2d DCA 2004). The transcript of the exam taken at the direction of Plaintiff's counsel shall remain work- product of the Plaintiffs attorney unless and until Plaintiff waives the privilege by listing same on a trial exhibit list, and upon written request and pre-payment of copying costs, Defendants shall be entitled to a copy of the transcript upon such waiver under Maguire v. Pool Doctor of Palm Beaches, Inc., 23 So. 3d 865 (Fla. 4th DCA 2009). Defendants shall not be allowed to videotape or transcribe the examination. Prince v. Mallari, 36 So. 3d 128 (Fla. Sth DCA 2010).10. The examiner shall not ask Plaintiff if her attorney referred him to any doctor, no reference to any such referral shall appear in the exam report, and the examiner shall not report, opine, or testify to any such referral. Burt v. GEICO, 603 So. 2d 125 (Fla. 2d DCA 1992). 11. The examiner shall not ask Plaintiff when he hired or retained a lawyer, no reference to the hiring of a lawyer shall appear in the exam report, and the examiner shall not report, opine, or testify regarding Plaintiff's hiring of a lawyer. Watson v. Builders Square, 563 So. 2d 721 (Fla. 4th DCA 1990). 12. Plaintiff shall not be required to submit to any new x-rays as part of the examination if Plaintiff has had x-rays that are not older than one year for the body part(s) to be examined during the exam. Defense counsel is responsible for providing such new x-rays to the examiner. In addition, within thirty (30) days of the completion of the examination, Defendants shall produce to counsel for Plaintiff copies of any new x-rays that were taken as part of the examination. 13. The examiner must prepare a detailed written report setting out all of his findings, including results of all tests made, diagnosis and conclusions, pursuant to Florida Rule of Civil Procedure 1.360(b)(1). 14. Defendant shall furnish the CME report to Plaintiff's counsel that sets forth all of the examiner’s findings and opinions within thirty (30) days of the date of the examination. 15. The CME report shall not be admitted into evidence at any proceeding in this case. McElroy v. Perry, 753 So. 2d 121 (Fla. 2d DCA 2000). 16. The examination shall commence at the designated time and Plaintiff shall not wait longer than thirty (30) minutes before being seen by the medical examiner. WHEREFORE, the Plaintiff, LAMAR MITCHELL, files his objection to Defendant’s Request for Neurological Compulsory Medical Examination on the aforementioned grounds, and requests a copy of an x-rays, and of the CME report within thirty (30) days of the date of examination.CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has been furnished to all counsel of record s7 via electronic mail Served by the Florida E-Portal this Z ( day of O 106K , 2019. By: Andres Hérmida, Esq. FBN: 1010725 MORGAN & MORGAN, P.A. Attorneys for Plaintiff 703 Waterford Way, Suite 1050 Miami, FL 33126 Telephone: 305-929-1901 Facsimile: 305-929-1944 AHermida@forthepeople.com JJaime@forthepeople.comCounsel for Defendant Daniel Frastai, Esq. FBN: 0666041 Assistant County Attorney 111 Northwest First Street Miami, FL 33128 Frastai@miamidade.gov Jeane.Neal@miamidade.gov Nicole Ramos-Barreau, Esq. FBN: 85291 Assistant County Attorney 111 Northwest First Street Miami, FL 33128 Nicole.ramos-barreau@miamidade.gov Monica.Barber@miamidade.gov SERVICE LISTFiling # 97508241 E-Filed 10/18/2019 11:47:28 AM IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA LAMAR MITCHELL, GENERAL JURISDICTION DIVISION Plaintiff(s), CASE NO. 19-8931 CA 01 (02) v. MIAMI-DADE COUNTY, Defendant(s). MIAMI-DADE COUNTY’S REQUEST FOR EXAMINATION OF PLAINTIFF Defendant MIAMI-DADE COUNTY, by and through undersigned counsel, and pursuant to Florida Rule of Civil Procedure 1.360, requests that Lamar Mitchell submit to a Physical examination as set forth below: Name of Doctor: Dr. Jay Stein Orthopaedist Date: December 10.2019 Time: 10:30a.m. Location: 9999NE2™ Avenue Suite 311A Miami Shores, FL 33138 Telephone: 305-751-2850 Manner, Conditions The exam shall be performed in the usual manner to and Scope: assess the physical condition of Plaintiff with respect to all conditions and injuries claimed in the present lawsuit. 1. Plaintiff shall serve a response within 30 days after service of this request, which shall state that the examination is permitted as requested unless objected to, in which event the reasons for the objection shall be stated. 2. Plaintiff is invited to provide any medical records, x-rays, or any other documents which would assist the Doctor in the examination. OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA TELEPHONE 305.375.5151 EXHIBIT "A"LAMAR MITCHELL v. MIAMI-DADE COUNTY Case No. 19-8931CA 01 (02) 3. Plaintiff is hereby advised that a disruption fee may be incurred if the Plaintiff fails to appear as scheduled or fails to give notice of cancellation within seven days of the examination. CERTIFICATE OF SERVICE I CERTIFY that the foregoing document has been e-mailed to all the parties of record on October 18, 2019 to the e-mail address(es) each has registered with the Florida Courts E-Filing Portal. Respectfully submitted, ABIGAIL PRICE-WILLIAMS Miami-Dade County Attomey Attorney for Defendant Miami-Dade County Stephen P. Clark Center, Suite 2810 111 Northwest First Street Miami, Florida 33128-1993 By:_/s/ Daniel Frastai Daniel Frastai Assistant County Attorney Florida Bar Number 0666041 Telephone: (305) 375-5480 Fax: (305) 375-5634 Email: Frastai@miamidade.gov jeane.neal@miamidade.gov Page 2 OFFICE OF COUNTY ATTORNEY, MIAMI-DADE COUNTY, FLORIDA TELEPHONE 305.375.5151