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Filing # 120888240 E-Filed 02/05/2021 10:39:24 AM
CARL LOUIS,
Plaintiff,
vs.
IN THE CIRCUIT COURT OF THE 1774
JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FL
CASE NO.: 20-016958 (14)
DAWN ADILI and STATE FARM MUTUAL
AUTOMOBILE INSURANCE COMPANY,
Defendants.
/
PLAINTIFF'S MOTION TO LIMIT THE SCOPE OF DEFENSE PHYSICAL EXAM UNDER
RULE 1.360; FOR PROTECTION AND OTHER RELIEF INCIDENT THERETO
COMES NOW the Plaintiff, CARL LOUIS, by and through the undersigned
counsel, and files this Motion to Limit the Scope of Defense Physical Exam under
Rule 1.360; For Protection and Other Relief Incident Thereto, and in support
thereof states the following:
1. The Defendant has scheduled an examination of the Plaintiff with
Kenneth Jarolem, M.D.
2. The Plaintiff requests this Court enter an order limiting whatever
examination as is permitted, as follows:
a.
The Plaintiff will not be required to complete any lengthy
information forms upon arrival at this doctor's offices. The
Plaintiff will furnish the doctors with his name and address, and
proof of identification, only. Should the examining doctor
require any further information with reference to the Plaintiff, the
doctor shall obtain same from defendants’ counsel.
. This medical examination is not a deposition. It is the obligation
and/or prerogative of the defense counsel, to provide their
doctor with the deposition of the Plaintiff, the Plaintiff's medical
records, answers to interrogatories, scans or other materials. As
such, it is not necessary for the doctors to conduct extensive oral
BROTMAN NUSBAUM IBRAHIM
137 West Royal Palm Road + Boca Raton, FL 33432
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 02/05/2021 10:39:24 AM.****or written examinations. To that extent, the defense doctor may
not take a history, written or oral, about facts and circumstances
of how the accident happened relating to “fault”, when Plaintiff
hired an attorney; who referred Plaintiff to any doctor; prior
accidents; prior medical history except as it relates to the areas
of alleged injury in the present lawsuit; work history; what Plaintiff
told police, ambulance drivers, hospital personnel and doctors.
. A court reporter and/or videographer and/or plaintiff's counsel
may be present at the doctor's examination. The defense or
any of its representatives shall not attend the examination. No
additional fees shall be charged by the doctors in the event
that a court reporter and/or videographer are present. Should
the examination be videotaped, the recording shall remain the
work product of the 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 copying costs,
Defendant shall be entitled to the videotape upon such waiver
under Byrd v. Southern Prestressed Concrete, Inc., 928 So. 2d 455
(Fla. Ist DCA 2008) and McGarrah v. Bayfront Medical Center,
Inc., 889 So. 2d 923 (Fla. 2d DCA 2004).
. The transcript of the exam shall remain work-product of the
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 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).
. Defendant shall not be allowed to videotape or transcribe the
exam. Ruiz v. Carpio, Prince v. Mallari, 36 So. 3d 128 (Fla. Sth
DCA 2010).
The examiner shall not be identified as “independent”,
“appointed by the Court”, "IME", “CME" or the like.
|. The examiner shall not comment on, put in his or her report, or
testify about, the reasonableness of Plaintiff's treatment or
medical bills. Emory v. Fla. Freedom Newspapers, 687 So. 2d 846
(Fla. 4th DCA 1997); Dungan v. Ford, 632 So. 2d 159 (Fla. Ist DCA
1994); Cameron v. Riddley, Fla. 15th Cir. Ct. Case No. 50 2007
CA 022385 XXXX MB, Order.
. 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).
BROTMAN NUSBAUM IBRAHIM
137 West Royal Palm Road + Boca Raton, FL 33432Plaintiff does not stipulate to the authenticity of any records,
films, documents, or things of any type that the examiner may
review or rely on. The examiner shall not be used as a conduit
for inadmissible hearsay evidence. The examiner shall not report
or comment on at any proceeding in this case about the
opinions, diagnoses and/or findings of other physicians who are
not testifying in this case. § 90.803(6), Fla. Stat. (2011); Ross Dress
for Less, Inc. v. Radcliff, 751 So. 2d 126 (Fla. 2d DCA 2000):
Maklakiewicz v. Berton, 652 So. 2d 1208 (Fla. 3d DCA 1995);
Forester v. Jewell, 610 So. 2d 1369 (Fla. 1st DCA 1992); Riggins v.
Mariner Boat Works, 545 So. 2d 430 (Fla. 2d DCA 1989); Kurynka
v. Tamarac Hospital, 542 So. 2d 412 (Fla. 4th DCA 1989); Smithson
v. VMS Realty, Inc., 536 So. 2d 260 (Fla. 3d DCA 1988).
Within a reasonable period of time, Plaintiff shall have the
opportunity to depose the examining doctor, after receipt and
review of the report(s) that the examining doctor shall prepare.
Said physician shall prepare a detailed written report setting out
all of findings, including results of all tests taken, diagnosis and
conclusions. Plaintiff may rely upon the reports of the doctor
and the doctor shall not be allowed to change, alter or amend
their opinions set forth in the medical reports without production
of an additional written report, and provided that there is a
reasonable opportunity for Plaintiff's counsel to conduct further
discovery, including a deposition of the examining physician.
. Plaintiff shall not be required to submit to any x-rays as part of
the exam if Plaintiff has x-rays not older than one year for the
body part(s) to be examined during the exam, and defense
counsel is responsible for providing such x-rays to the examiner.
The examiner shall not ask Plaintiff if his/her attorney referred
him/her 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).
. The examiner shall not ask Plaintiff when he/she hired 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 to any
the hiring of a lawyer. Watson v. Builders Square, 563 So. 2d 721
(Fla. 4th DCA 1990).
. The conditions apply to the exam as is currently set for the date
and time set by original notice or such other date and time as
reasonably re-set.
BROTMAN NUSBAUM IBRAHIM
137 West Royal Palm Road + Boca Raton, FL 334320. Plaintiff has leave to serve interrogatories permitted by Elkins v.
Syken, 672 So.2d 517 and Allstate Ins. Co. v. Boecher, 24 FLW
$187 (Fla. 1999) approving Allstate Ins. Co. v. Boecher, 705 So.2d
106 (Fla. 4h D.C.A. 1998), and Springer v. West, 25 FLW D2166
(Fla. 5" DCA 2000) (approving Boecher).
p. Defense is responsible for notifying the examining doctor of the
terms of the order entered on this objection.
q. If the exam does not start within thirty (30) minutes of the
scheduled start time, then Plaintiff shall not be required to wait
further and Defendants shall be responsible for all fees and costs
associated with the attendance of Plaintiff's counsel, court
reporter, and videographer at the non-occurring exam.
3. Pursuant to Rule 1.360(b) (1), Plaintiff, CARL LOUIS, requests he be
provided with a copy of the final written report within 30 days of the date of the
examination.
WHEREFORE, Plaintiff, CARL LOUIS, requests this Court to enter an Order
limiting the scope of the defense compulsory exam as detailed above.
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY on this day of February, 2021, that the foregoing
was electronically filed with the Clerk of the Courts by use of the EPF system
which will send a notice of electronic filing to all counsel on the attached
service list.
BROTMAN NUSBAUM IBRAHIM
137 West Royal Palm Road
Boca Raton, FL 33432
Phone: 561-417-5656
Florida Bar No.: 114715
BROTMAN NUSBAUM IBRAHIM
137 West Royal Paim Road + Boca Raton, FL 33432Service List
Carl Louis v. Dawn Adili and State Farm Mutual Automobile Insurance Company
Case No.: 20-016958 (14)
Patrick Spellacy, Esq.
Kirwan, Spellacy, Danner, Watkins & Brownstein, P.A.
Attorneys for Defendant, Dawn Adili
200 South Andrews Avenue, 8!» floor
Fort Lauderdale, FL 33301
Tel: 954-463-3008
Fax: 954-463-3010
Email: pleadings@kirwanspellacy.com
Lisa J. Baligian, Esq.
Nicholas J. Ryan & Associates
Attorneys for Defendant, State Farm
110 SE 6" Street, Suite 2100
Fort Lauderdale, FL 33301
Tel: 954-627-9401
Email: flor.law-lisabaligian.294019@statefarm.com
BROTMAN NUSBAUM IBRAHIM
137 West Royal Palm Road « Boca Raton, FL 33432
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Filing # 120888240 E-Filed 02/05/2021 10:39:24 AM CARL LOUIS, Plaintiff, vs. IN THE CIRCUIT COURT OF THE 1774 JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FL CASE NO.: 20-016958 (14) DAWN ADILI and STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendants. / PLAINTIFF'S MOTION TO LIMIT THE SCOPE OF DEFENSE PHYSICAL EXAM UNDER RULE 1.360; FOR PROTECTION AND OTHER RELIEF INCIDENT THERETO COMES NOW the Plaintiff, CARL LOUIS, by and through the undersigned counsel, and files this Motion to Limit the Scope of Defense Physical Exam under Rule 1.360; For Protection and Other Relief Incident Thereto, and in support thereof states the following: 1. The Defendant has scheduled an examination of the Plaintiff with Kenneth Jarolem, M.D. 2. The Plaintiff requests this Court enter an order limiting whatever examination as is permitted, as follows: a. The Plaintiff will not be required to complete any lengthy information forms upon arrival at this doctor's offices. The Plaintiff will furnish the doctors with his name and address, and proof of identification, only. Should the examining doctor require any further information with reference to the Plaintiff, the doctor shall obtain same from defendants’ counsel. . This medical examination is not a deposition. It is the obligation and/or prerogative of the defense counsel, to provide their doctor with the deposition of the Plaintiff, the Plaintiff's medical records, answers to interrogatories, scans or other materials. As such, it is not necessary for the doctors to conduct extensive oral BROTMAN NUSBAUM IBRAHIM 137 West Royal Palm Road + Boca Raton, FL 33432 *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 02/05/2021 10:39:24 AM.****or written examinations. To that extent, the defense doctor may not take a history, written or oral, about facts and circumstances of how the accident happened relating to “fault”, when Plaintiff hired an attorney; who referred Plaintiff to any doctor; prior accidents; prior medical history except as it relates to the areas of alleged injury in the present lawsuit; work history; what Plaintiff told police, ambulance drivers, hospital personnel and doctors. . A court reporter and/or videographer and/or plaintiff's counsel may be present at the doctor's examination. The defense or any of its representatives shall not attend the examination. No additional fees shall be charged by the doctors in the event that a court reporter and/or videographer are present. Should the examination be videotaped, the recording shall remain the work product of the 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 copying costs, Defendant shall be entitled to the videotape upon such waiver under Byrd v. Southern Prestressed Concrete, Inc., 928 So. 2d 455 (Fla. Ist DCA 2008) and McGarrah v. Bayfront Medical Center, Inc., 889 So. 2d 923 (Fla. 2d DCA 2004). . The transcript of the exam shall remain work-product of the 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 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). . Defendant shall not be allowed to videotape or transcribe the exam. Ruiz v. Carpio, Prince v. Mallari, 36 So. 3d 128 (Fla. Sth DCA 2010). The examiner shall not be identified as “independent”, “appointed by the Court”, "IME", “CME" or the like. |. The examiner shall not comment on, put in his or her report, or testify about, the reasonableness of Plaintiff's treatment or medical bills. Emory v. Fla. Freedom Newspapers, 687 So. 2d 846 (Fla. 4th DCA 1997); Dungan v. Ford, 632 So. 2d 159 (Fla. Ist DCA 1994); Cameron v. Riddley, Fla. 15th Cir. Ct. Case No. 50 2007 CA 022385 XXXX MB, Order. . 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). BROTMAN NUSBAUM IBRAHIM 137 West Royal Palm Road + Boca Raton, FL 33432Plaintiff does not stipulate to the authenticity of any records, films, documents, or things of any type that the examiner may review or rely on. The examiner shall not be used as a conduit for inadmissible hearsay evidence. The examiner shall not report or comment on at any proceeding in this case about the opinions, diagnoses and/or findings of other physicians who are not testifying in this case. § 90.803(6), Fla. Stat. (2011); Ross Dress for Less, Inc. v. Radcliff, 751 So. 2d 126 (Fla. 2d DCA 2000): Maklakiewicz v. Berton, 652 So. 2d 1208 (Fla. 3d DCA 1995); Forester v. Jewell, 610 So. 2d 1369 (Fla. 1st DCA 1992); Riggins v. Mariner Boat Works, 545 So. 2d 430 (Fla. 2d DCA 1989); Kurynka v. Tamarac Hospital, 542 So. 2d 412 (Fla. 4th DCA 1989); Smithson v. VMS Realty, Inc., 536 So. 2d 260 (Fla. 3d DCA 1988). Within a reasonable period of time, Plaintiff shall have the opportunity to depose the examining doctor, after receipt and review of the report(s) that the examining doctor shall prepare. Said physician shall prepare a detailed written report setting out all of findings, including results of all tests taken, diagnosis and conclusions. Plaintiff may rely upon the reports of the doctor and the doctor shall not be allowed to change, alter or amend their opinions set forth in the medical reports without production of an additional written report, and provided that there is a reasonable opportunity for Plaintiff's counsel to conduct further discovery, including a deposition of the examining physician. . Plaintiff shall not be required to submit to any x-rays as part of the exam if Plaintiff has x-rays not older than one year for the body part(s) to be examined during the exam, and defense counsel is responsible for providing such x-rays to the examiner. The examiner shall not ask Plaintiff if his/her attorney referred him/her 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). . The examiner shall not ask Plaintiff when he/she hired 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 to any the hiring of a lawyer. Watson v. Builders Square, 563 So. 2d 721 (Fla. 4th DCA 1990). . The conditions apply to the exam as is currently set for the date and time set by original notice or such other date and time as reasonably re-set. BROTMAN NUSBAUM IBRAHIM 137 West Royal Palm Road + Boca Raton, FL 334320. Plaintiff has leave to serve interrogatories permitted by Elkins v. Syken, 672 So.2d 517 and Allstate Ins. Co. v. Boecher, 24 FLW $187 (Fla. 1999) approving Allstate Ins. Co. v. Boecher, 705 So.2d 106 (Fla. 4h D.C.A. 1998), and Springer v. West, 25 FLW D2166 (Fla. 5" DCA 2000) (approving Boecher). p. Defense is responsible for notifying the examining doctor of the terms of the order entered on this objection. q. If the exam does not start within thirty (30) minutes of the scheduled start time, then Plaintiff shall not be required to wait further and Defendants shall be responsible for all fees and costs associated with the attendance of Plaintiff's counsel, court reporter, and videographer at the non-occurring exam. 3. Pursuant to Rule 1.360(b) (1), Plaintiff, CARL LOUIS, requests he be provided with a copy of the final written report within 30 days of the date of the examination. WHEREFORE, Plaintiff, CARL LOUIS, requests this Court to enter an Order limiting the scope of the defense compulsory exam as detailed above. CERTIFICATE OF SERVICE WE HEREBY CERTIFY on this day of February, 2021, that the foregoing was electronically filed with the Clerk of the Courts by use of the EPF system which will send a notice of electronic filing to all counsel on the attached service list. BROTMAN NUSBAUM IBRAHIM 137 West Royal Palm Road Boca Raton, FL 33432 Phone: 561-417-5656 Florida Bar No.: 114715 BROTMAN NUSBAUM IBRAHIM 137 West Royal Paim Road + Boca Raton, FL 33432Service List Carl Louis v. Dawn Adili and State Farm Mutual Automobile Insurance Company Case No.: 20-016958 (14) Patrick Spellacy, Esq. Kirwan, Spellacy, Danner, Watkins & Brownstein, P.A. Attorneys for Defendant, Dawn Adili 200 South Andrews Avenue, 8!» floor Fort Lauderdale, FL 33301 Tel: 954-463-3008 Fax: 954-463-3010 Email: pleadings@kirwanspellacy.com Lisa J. Baligian, Esq. Nicholas J. Ryan & Associates Attorneys for Defendant, State Farm 110 SE 6" Street, Suite 2100 Fort Lauderdale, FL 33301 Tel: 954-627-9401 Email: flor.law-lisabaligian.294019@statefarm.com BROTMAN NUSBAUM IBRAHIM 137 West Royal Palm Road « Boca Raton, FL 33432