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Filing # 97034743 E-Filed 10/10/2019 11:37:08 AM
IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT
IN AND FOR INDIAN RIVER COUNTY, FLORIDA
AKRAM LOKA and SOUZY HANNA, CASE NO. 2019CA000207
his wife,
Plaintiff,
vs.
GEICO GENERAL INSURANCE COMPANY
INCORPORATED,
Defendant.
ol
PLAINTIFF'S OBJECTION TO AND MOTION FOR PROTECTIVE RULES
GOVERNING COMPULSORY ORTHOPEDIC EXAMINATION
COMES NOW the Plaintiff, AKRAM LOKA, by and through his undersigned attorney, and
pursuant to Rule 1.360 of the Florida Rules of Civil Procedure, responds to Defendant's Request for
Compulsory Orthopedic Examination by Bruce Berkowitz, M.D., an orthopedic surgeon, and files his
objection and Motion for Protective Rules Governing Compulsory Orthopedic Examination and
therefore states as follows:
1. Plaintiff has been noticed under Florida Rules of Civil Procedure 1.360 to submit to
an examination by Bruce Berkowitz, M.D., at Indian River Court Reporting & Video, 1420 20"
Street, Vero Beach, FL 34960 on November 13, 2019 at 3:00 p.m.
2. Plaintiff requests that the Court enter an Order conditioning the examination upon
certain factors. Specifically, the Plaintiff seeks an Order preventing the Defendant's expert requiring
that the Plaintiff fill out “paperwork” or answer questions about the incident itself as part of the
examination. Such a request is not contemplated by the Rules and renders the examination
unreasonable and that said questions constitute an ex-parte examination of the Plaintiff withoutassistance of counsel. In the alternative, should Dr. Berkowitz seek to have Plaintiff, fill out any
“paperwork” or questions, Plaintiff will agree to review any such paperwork prior to the examination
and counsel will assist Plaintiff in answering any of the non-objectionable items. In addition, the
defense has deposed Plaintiff and may send that deposition to the doctor.
4, Plaintiff seeks an Order prohibiting the requirement that the Plaintiff is to obtain and
bring to the examination all medical records and x-rays. This is beyond the scope of the Rules and
Defendant has the ability to subpoena any requisite records for its expert.
5. Plaintiff further seeks an Order prohibiting Dr. Berkowitz from re-deposing the
Plaintiff by way of taking an oral history. Dr. Berkowitz is being utilized as an expert witness in a
uniquely adversarial proceeding. As part of his “expert” qualifications, Dr. Berkowitz must review
the available discovery in order to obtain the factual setting with those injuries and treatment.
Specifically, Dr. Berkowitz must use the previously provided interrogatory answers, the transcript
of the Plaintiff's deposition and the medical records provided in this matter. To allow an oral history
to be taken by Dr. Berkowitz is tantamount to permitting an ex-parte second deposition and is NOT
contemplated by the Rules.
6. Plaintiff seeks an Order prohibiting Dr. Berkowitz from discussing with the Defendant
their version of how the subject accident occurred.
7. Plaintiff seeks an Order of Requirement that the Defense expert Dr. Berkowitz
provide limited disclosure required by Elkins v. Sykon, 672 So. 2"! 517 (Fla 1996); and Okin
Exterminating Co. Inc. v. Knollwood Properties, Ltd., 710 So. 2"4 697 (Fla 5" DCA 1988). Plaintiff's
entitlement to the disclosure of the identity of each Court case in which the examiner has actually
testified as an expert, whether by deposition or at trial, during the last three years is a requirementunder Florida law. Although experts are required to disclose this information in order to testify,
many defense medical experts have stated that they are unwilling or unable to do so. If Defendant's
chosen examiner falls within that category, it is important to find this out prior to the examination.
Otherwise, the Plaintiff may be subjected to repetitive compulsory examinations or the defense
forced to trial without an expert witness.
8. Additionally, Plaintiff seeks an Order prohibiting Dr. Berkowitz from performing any
diagnostic testing, including, but not limited to, x-rays, CT scans and MRIs, as such testing is not
contemplated by the Rules.
9. That pursuant to Suarez v. Morhaim, 745 So. 2™ 368 (Fla DCA 1999), the Plaintiff will
rely upon the report of the compulsory orthopedic examination document, therefore, the Plaintiff
seeks an Order prohibiting Dr. Berkowitz from changing, altering or amending the opinions set forth
in hisindependent medical report during any testimony he may give in reference to his examination
of Plaintiff.
10. Plaintiff requests the presence of a court reporter and/or videographer to preserve
the communications between the Plaintiff and the physician during the course of the examination.
11. That the plaintiff requests that the compulsory orthopedic examination doctor, Bruce
Berkowitz, M.D. prepare the compulsory orthopedic examination report within 15 days of the
examination and simultaneously furnish counsel for the Defendant and Plaintiff with a copy of the
same.
12. Plaintiff seeks an Order prohibiting Dr. Berkowitz from being called as an
Independent Medical Examiner at trial. Dr. Berkowitz was chosen and hired by the Defendant for
the sole purpose of preparing a defense against the Plaintiff's claim. The use of the termcompulsory or independent medical examiner is misleading. It leaves the impression that this
particular doctor was appointed by the Court and not hired by the Defendant. In the alternative,
the Plaintiff respectfully requests the Court to enter an Order labeling Dr. Berkowitz as defense’s
medical examiner.
WHEREFORE, Plaintiff, AKRAM LOKA, respectfully requests that this Court enter an Order for
Protective Rules Governing the Compulsory Orthopedic Examination as stated above.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via
Florida's e-filing portal to Amy Das, Esquire, with the Law Offices of Jeffrey R. Hickman
(wobgeico@geico.com and AmDas@geico.com), 1555 Palm Beach Lakes Blvd., Ste. 1000, West Palm
7) i
Beach, FL 33401 on this 1D day of __{ Lip! vr 2019.
THE LEWIS LAW GROUP
Attorneys for Plaintiff
1115 East Ocean Boulevard
Stuart, Florida 34996
Telephone: (772) 286-7861
Primary: services@lewislawgrouppa.com
2: mariae@l Sow fouppacom
LE
Y |, ESQUIRE
forida Bar No.
206377
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Filing # 97034743 E-Filed 10/10/2019 11:37:08 AM IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT IN AND FOR INDIAN RIVER COUNTY, FLORIDA AKRAM LOKA and SOUZY HANNA, CASE NO. 2019CA000207 his wife, Plaintiff, vs. GEICO GENERAL INSURANCE COMPANY INCORPORATED, Defendant. ol PLAINTIFF'S OBJECTION TO AND MOTION FOR PROTECTIVE RULES GOVERNING COMPULSORY ORTHOPEDIC EXAMINATION COMES NOW the Plaintiff, AKRAM LOKA, by and through his undersigned attorney, and pursuant to Rule 1.360 of the Florida Rules of Civil Procedure, responds to Defendant's Request for Compulsory Orthopedic Examination by Bruce Berkowitz, M.D., an orthopedic surgeon, and files his objection and Motion for Protective Rules Governing Compulsory Orthopedic Examination and therefore states as follows: 1. Plaintiff has been noticed under Florida Rules of Civil Procedure 1.360 to submit to an examination by Bruce Berkowitz, M.D., at Indian River Court Reporting & Video, 1420 20" Street, Vero Beach, FL 34960 on November 13, 2019 at 3:00 p.m. 2. Plaintiff requests that the Court enter an Order conditioning the examination upon certain factors. Specifically, the Plaintiff seeks an Order preventing the Defendant's expert requiring that the Plaintiff fill out “paperwork” or answer questions about the incident itself as part of the examination. Such a request is not contemplated by the Rules and renders the examination unreasonable and that said questions constitute an ex-parte examination of the Plaintiff withoutassistance of counsel. In the alternative, should Dr. Berkowitz seek to have Plaintiff, fill out any “paperwork” or questions, Plaintiff will agree to review any such paperwork prior to the examination and counsel will assist Plaintiff in answering any of the non-objectionable items. In addition, the defense has deposed Plaintiff and may send that deposition to the doctor. 4, Plaintiff seeks an Order prohibiting the requirement that the Plaintiff is to obtain and bring to the examination all medical records and x-rays. This is beyond the scope of the Rules and Defendant has the ability to subpoena any requisite records for its expert. 5. Plaintiff further seeks an Order prohibiting Dr. Berkowitz from re-deposing the Plaintiff by way of taking an oral history. Dr. Berkowitz is being utilized as an expert witness in a uniquely adversarial proceeding. As part of his “expert” qualifications, Dr. Berkowitz must review the available discovery in order to obtain the factual setting with those injuries and treatment. Specifically, Dr. Berkowitz must use the previously provided interrogatory answers, the transcript of the Plaintiff's deposition and the medical records provided in this matter. To allow an oral history to be taken by Dr. Berkowitz is tantamount to permitting an ex-parte second deposition and is NOT contemplated by the Rules. 6. Plaintiff seeks an Order prohibiting Dr. Berkowitz from discussing with the Defendant their version of how the subject accident occurred. 7. Plaintiff seeks an Order of Requirement that the Defense expert Dr. Berkowitz provide limited disclosure required by Elkins v. Sykon, 672 So. 2"! 517 (Fla 1996); and Okin Exterminating Co. Inc. v. Knollwood Properties, Ltd., 710 So. 2"4 697 (Fla 5" DCA 1988). Plaintiff's entitlement to the disclosure of the identity of each Court case in which the examiner has actually testified as an expert, whether by deposition or at trial, during the last three years is a requirementunder Florida law. Although experts are required to disclose this information in order to testify, many defense medical experts have stated that they are unwilling or unable to do so. If Defendant's chosen examiner falls within that category, it is important to find this out prior to the examination. Otherwise, the Plaintiff may be subjected to repetitive compulsory examinations or the defense forced to trial without an expert witness. 8. Additionally, Plaintiff seeks an Order prohibiting Dr. Berkowitz from performing any diagnostic testing, including, but not limited to, x-rays, CT scans and MRIs, as such testing is not contemplated by the Rules. 9. That pursuant to Suarez v. Morhaim, 745 So. 2™ 368 (Fla DCA 1999), the Plaintiff will rely upon the report of the compulsory orthopedic examination document, therefore, the Plaintiff seeks an Order prohibiting Dr. Berkowitz from changing, altering or amending the opinions set forth in hisindependent medical report during any testimony he may give in reference to his examination of Plaintiff. 10. Plaintiff requests the presence of a court reporter and/or videographer to preserve the communications between the Plaintiff and the physician during the course of the examination. 11. That the plaintiff requests that the compulsory orthopedic examination doctor, Bruce Berkowitz, M.D. prepare the compulsory orthopedic examination report within 15 days of the examination and simultaneously furnish counsel for the Defendant and Plaintiff with a copy of the same. 12. Plaintiff seeks an Order prohibiting Dr. Berkowitz from being called as an Independent Medical Examiner at trial. Dr. Berkowitz was chosen and hired by the Defendant for the sole purpose of preparing a defense against the Plaintiff's claim. The use of the termcompulsory or independent medical examiner is misleading. It leaves the impression that this particular doctor was appointed by the Court and not hired by the Defendant. In the alternative, the Plaintiff respectfully requests the Court to enter an Order labeling Dr. Berkowitz as defense’s medical examiner. WHEREFORE, Plaintiff, AKRAM LOKA, respectfully requests that this Court enter an Order for Protective Rules Governing the Compulsory Orthopedic Examination as stated above. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via Florida's e-filing portal to Amy Das, Esquire, with the Law Offices of Jeffrey R. Hickman (wobgeico@geico.com and AmDas@geico.com), 1555 Palm Beach Lakes Blvd., Ste. 1000, West Palm 7) i Beach, FL 33401 on this 1D day of __{ Lip! vr 2019. THE LEWIS LAW GROUP Attorneys for Plaintiff 1115 East Ocean Boulevard Stuart, Florida 34996 Telephone: (772) 286-7861 Primary: services@lewislawgrouppa.com 2: mariae@l Sow fouppacom LE Y |, ESQUIRE forida Bar No. 206377