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Filing # 139178831 E-Filed 11/24/2021 03:55:48 PM
IN THE CIRCUIT COURT OF THE 15TH
JUDICIAL CIRCUIT IN AND FOR
PALM-BEACH COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO.: 50-2018-CA-015763
ELIZABETH L. BALZARANO,
individually, and as Personal
Representative of the Estate of
MICHELLE L. BALZARANO,
Plaintiff,
Vv.
LIFELINE RECOVERY, LLC, d/b/a
LIFELINE RECOVERY SUPPORT
SERVICES, a Foreign Corporation;
JOHN BROGAN; LIFE CHANGES
ADDICTION TREATMENT CENTER
OF THE PALM BEACHES; WARBIRD
PROPERTIES, LLC, d/b/a CAMERON VILLA,
LLC, a Florida Corporation; EMILIO DUBOY,
M.D.; and, JANINE BEATTIE, ARNP,
Defendants.
PLAINTIFF’S MOTION TO COMPEL AND FOR SANCTIONS
Plaintiff hereby files a motion to compel and for sanctions in accordance with Florida
Statute § 1.310 and 1.380 and states as follows:
Motion to Compel Answers to Interrogatory Questions
This is a negligence and medical malpractice claim stemming from the negligent care,
treatment, and discharge of Michelle Balzarano which led to her death. The instant motion
relates to three Defendants: Life Changes Addiction Treatment Center, Dr. Emilio Duboy, and
Nurse Janine Beattie. Dr. Duboy and Nurse Beattie where employed by Defendant Life Changes
*** FILED: PALM BEACH COUNTY, FL JOSEPH ABRUZZO, CLERK. 11/24/2021 03:55:48 PM ***and rendered medical care and treatment to Michelle Balzarano. During their depositions both
Dr. Duboy and Nurse Beattie were instructed by Defense Counsel not to answer certain
questions. Both times the instruction not to answer was without valid basis and in contravention
of Rule 1.310 (c).
During Dr. Duboy’s deposition he was asked how much monthly compensation he
received from Life Changes. (See Deposition of Dr. Duboy, Pg. 41-43, attached hereto as
Exhibit A.). Counsel instructed him not to answer citing that it was improper “financial worth
discovery.” Information on Dr. Duboy’s compensation from Life Changes bears directly on
relevant issues in this case. He was the statutorily required medical director, and only physician
employed at Life Changes, solely responsible for the care and treatment of all of the patients at
the facility. He testified he believed he worked one half day a week. /d. at 45. Plaintiffs seek to
establish that his employment and association with Life Changes was merely surface level to
permit Life Changes to obtain a license to operate, and that his payment was accordingly
nominal. Furthermore, the amount of his payment bears directly on his motivation, willingness
and ability to invest sufficient time and effort into the patients at Life Changes.
Nurse Beattie testified that she initially worked at Life Changes on a volunteer basis and
received no compensation, and was subsequently paid for her work at some point after Michelle
Balzarano was discharged. (Nurse Beattie’s Deposition Transcript will be filed with the court
upon completion.). She testified that she was asked to work at Life Changes by the father of the
owner/CEO of Life Changes, an individual named Martin Mobarak. When asked about the
nature of her relationship with Mr. Mobarak, Defense Counsel instructed Nurse Beattie not to
answer. Again, this inquiry is directly relevant to Defendant Beattie’s involvement with Life
Changes, as well as her potential bias. It is rather unusual that an ARNP would volunteer as amedical provider at a substance abuse treatment center without receiving compensation, and
Plaintiff has a right to discover if the nature of Nurse Beattie’s relationship impacted her decision
and willingness to work for free. It is arguable that working without pay could impact the
regularity, intensity, and quality of care offered at the facility. Additionally, a potential
relationship with the family that employed her may have an impact on credibility and motivation
to provide certain favorable testimony in this matter. In sum, the question goes directly to her
relationship with other party-defendants and is highly relevant.
Barring exceptional circumstances it is improper to instruct a witness not to answer or to
impede deposition questioning. Florida Rule of Civil Procedure 1.310 (c) governs such
situations and states: “A party may instruct a deponent not to answer only when necessary to
preserve a privilege, to enforce a limitation on evidence directed by the court, or to present a
motion under subdivision (d).” Rule 1.380 permits a motion to compel following an improper
instruction not to respond to a deposition question, and authorizes attorney’s fees and expenses if
the motion is granted.
The court should therefore order a limited second deposition of Nurse Beattie and Dr.
Duboy, compel the Defendants to answer the questions set forth above and reasonably tailored
follow up examination, and award costs and fees for bringing this motion and necessitating the
second deposition.
CERTIFICATION
The movant, in good faith, has conferred with the parties failing to make the discovery in
an effort to secure the information without court action, but has been unable to do so.
[CERTIFICATE OF SERVICE ON FOLLOWING PAGE]CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was filed with the Florida
Court’s E-Filing Portal on this 24" day of November, 2021, which will send an automatic e-mail
message to the following parties registered with the e-Filing Portal system: Jonathan M.
Midwall, Esquire, jonathan.midwall@csklegal.com and Alyssa Tornberg, Esquire,
alyssa.tornberg@csklegal.com and omaira.garcia@csklegal.com, Cole, Scott & Kissane, P.A.,
9150 South Dadeland Boulevard, Suite 1400, P.O. Box 569015, Miami, FL 33256, Counsel for
Defendant Life Changes Addiction Treatment Center of The Palm Beaches; Jeanine Beattie,
ARNP; Noelle Sheehan, Esquire Noelle.Sheehan@wilsonelser.com;
alyssa. heitman@wilsonelser.com; Denise.lendway@wilsonelser.com, Wilson Elser Moskowitz
Edelman & Dicker LLP, 111 North Orange Avenue, Suite 1200, Orlando, FL 32801, Counsel for
Defendant Emilio Duboy, MD; and via U.S. Mail and Email to: John Brogan
jbrogan@lifelinerss.com, Lifeline Recovery, LLC, 136 Newark Avenue, Lavallette, NJ 08735.
Respectfully submitted,
LEESFIELD SCOLARO, P.A.
Attorneys for Plaintiff
2350 South Dixie Highway
Miami, Florida 33133
Telephone: 305-854-4900
Facsimile: 305-854-8266
Email: scolaro@leesfield.com
graham@leesfield.com
arguello@leesfield.com
By: _/s/Thomas Graham
Thomas Scolaro, Esq.
Fla. Bar No. 178276
Thomas D. Graham, Esq.
Fla. Bar No. 89043
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Filing # 139178831 E-Filed 11/24/2021 03:55:48 PM IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT IN AND FOR PALM-BEACH COUNTY, FLORIDA GENERAL JURISDICTION DIVISION CASE NO.: 50-2018-CA-015763 ELIZABETH L. BALZARANO, individually, and as Personal Representative of the Estate of MICHELLE L. BALZARANO, Plaintiff, Vv. LIFELINE RECOVERY, LLC, d/b/a LIFELINE RECOVERY SUPPORT SERVICES, a Foreign Corporation; JOHN BROGAN; LIFE CHANGES ADDICTION TREATMENT CENTER OF THE PALM BEACHES; WARBIRD PROPERTIES, LLC, d/b/a CAMERON VILLA, LLC, a Florida Corporation; EMILIO DUBOY, M.D.; and, JANINE BEATTIE, ARNP, Defendants. PLAINTIFF’S MOTION TO COMPEL AND FOR SANCTIONS Plaintiff hereby files a motion to compel and for sanctions in accordance with Florida Statute § 1.310 and 1.380 and states as follows: Motion to Compel Answers to Interrogatory Questions This is a negligence and medical malpractice claim stemming from the negligent care, treatment, and discharge of Michelle Balzarano which led to her death. The instant motion relates to three Defendants: Life Changes Addiction Treatment Center, Dr. Emilio Duboy, and Nurse Janine Beattie. Dr. Duboy and Nurse Beattie where employed by Defendant Life Changes *** FILED: PALM BEACH COUNTY, FL JOSEPH ABRUZZO, CLERK. 11/24/2021 03:55:48 PM ***and rendered medical care and treatment to Michelle Balzarano. During their depositions both Dr. Duboy and Nurse Beattie were instructed by Defense Counsel not to answer certain questions. Both times the instruction not to answer was without valid basis and in contravention of Rule 1.310 (c). During Dr. Duboy’s deposition he was asked how much monthly compensation he received from Life Changes. (See Deposition of Dr. Duboy, Pg. 41-43, attached hereto as Exhibit A.). Counsel instructed him not to answer citing that it was improper “financial worth discovery.” Information on Dr. Duboy’s compensation from Life Changes bears directly on relevant issues in this case. He was the statutorily required medical director, and only physician employed at Life Changes, solely responsible for the care and treatment of all of the patients at the facility. He testified he believed he worked one half day a week. /d. at 45. Plaintiffs seek to establish that his employment and association with Life Changes was merely surface level to permit Life Changes to obtain a license to operate, and that his payment was accordingly nominal. Furthermore, the amount of his payment bears directly on his motivation, willingness and ability to invest sufficient time and effort into the patients at Life Changes. Nurse Beattie testified that she initially worked at Life Changes on a volunteer basis and received no compensation, and was subsequently paid for her work at some point after Michelle Balzarano was discharged. (Nurse Beattie’s Deposition Transcript will be filed with the court upon completion.). She testified that she was asked to work at Life Changes by the father of the owner/CEO of Life Changes, an individual named Martin Mobarak. When asked about the nature of her relationship with Mr. Mobarak, Defense Counsel instructed Nurse Beattie not to answer. Again, this inquiry is directly relevant to Defendant Beattie’s involvement with Life Changes, as well as her potential bias. It is rather unusual that an ARNP would volunteer as amedical provider at a substance abuse treatment center without receiving compensation, and Plaintiff has a right to discover if the nature of Nurse Beattie’s relationship impacted her decision and willingness to work for free. It is arguable that working without pay could impact the regularity, intensity, and quality of care offered at the facility. Additionally, a potential relationship with the family that employed her may have an impact on credibility and motivation to provide certain favorable testimony in this matter. In sum, the question goes directly to her relationship with other party-defendants and is highly relevant. Barring exceptional circumstances it is improper to instruct a witness not to answer or to impede deposition questioning. Florida Rule of Civil Procedure 1.310 (c) governs such situations and states: “A party may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation on evidence directed by the court, or to present a motion under subdivision (d).” Rule 1.380 permits a motion to compel following an improper instruction not to respond to a deposition question, and authorizes attorney’s fees and expenses if the motion is granted. The court should therefore order a limited second deposition of Nurse Beattie and Dr. Duboy, compel the Defendants to answer the questions set forth above and reasonably tailored follow up examination, and award costs and fees for bringing this motion and necessitating the second deposition. CERTIFICATION The movant, in good faith, has conferred with the parties failing to make the discovery in an effort to secure the information without court action, but has been unable to do so. [CERTIFICATE OF SERVICE ON FOLLOWING PAGE]CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was filed with the Florida Court’s E-Filing Portal on this 24" day of November, 2021, which will send an automatic e-mail message to the following parties registered with the e-Filing Portal system: Jonathan M. Midwall, Esquire, jonathan.midwall@csklegal.com and Alyssa Tornberg, Esquire, alyssa.tornberg@csklegal.com and omaira.garcia@csklegal.com, Cole, Scott & Kissane, P.A., 9150 South Dadeland Boulevard, Suite 1400, P.O. Box 569015, Miami, FL 33256, Counsel for Defendant Life Changes Addiction Treatment Center of The Palm Beaches; Jeanine Beattie, ARNP; Noelle Sheehan, Esquire Noelle.Sheehan@wilsonelser.com; alyssa. heitman@wilsonelser.com; Denise.lendway@wilsonelser.com, Wilson Elser Moskowitz Edelman & Dicker LLP, 111 North Orange Avenue, Suite 1200, Orlando, FL 32801, Counsel for Defendant Emilio Duboy, MD; and via U.S. Mail and Email to: John Brogan jbrogan@lifelinerss.com, Lifeline Recovery, LLC, 136 Newark Avenue, Lavallette, NJ 08735. Respectfully submitted, LEESFIELD SCOLARO, P.A. Attorneys for Plaintiff 2350 South Dixie Highway Miami, Florida 33133 Telephone: 305-854-4900 Facsimile: 305-854-8266 Email: scolaro@leesfield.com graham@leesfield.com arguello@leesfield.com By: _/s/Thomas Graham Thomas Scolaro, Esq. Fla. Bar No. 178276 Thomas D. Graham, Esq. Fla. Bar No. 89043