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Filing # 134817770 E-Filed 09/17/2021 02:40:01 PM
IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT IN AND
FOR BREVARD COUNTY, FLORIDA
LINDA NOLAN POTTER,
CASE NO.: 05-2021-CA-019085-XXXX-XX
Plaintiff,
VS.
EMANUEL JACKSON, and UNITED SERVICES
AUTOMOBILE ASSOCIATION, a foreign for profit
corporation, and GEICO GENERAL INSURANCE
COMPANY, a foreign for profit corporation,
Defendants.
/
PLAINTIFE’S RESPONSE AND OBJECTIONS TO UNAUTHORIZED
CONDITIONS IN DEFENDANTS’ REQUEST FOR PHYSICAL EXAMINATION
Plaintiff, LINDA POTTER hereby responds and objects to the Notices of
Examinations served on Plaintiff seeking a Defense Medical Examinations (“(DME”
hereinafter) of Plaintiff as unilaterally scheduled by Defendant USAA to be conducted by
Dr. Brett A. Osborn at his offices located at 600 Heritage Drive, Suite 105, Jupiter, FL
33458. Said examination is set for October 12, 2021 at 12:00 PM.
1. Plaintiff objects to the conditions of the examination, as the notice did
not specifically been set forth as required by the rule and case law
which requires Defendant to specify the scope of the examination, See
Maddox v. Bullard, 141 So. 3d 1264 (Fla 5 DCA 2014) and Espinosa
v. D.H. Griffin Construction Company, LLC 187 So. 3d 1273 (Fla. 3d
DCA 2016).
Plaintiff further objects to the 7 day notice provision as well as any
cancellation fees as the rule makes no such provisions.
Filing 134817770 L POTTER VS EMANUEL JACKSON 05-2021-CA-019085-XXXX-XX
3. Plaintiff objects to the location of the Examination as it has been set
approximately 100 miles one way from Plaintiff's residence in Martin
County, Florida. This is an unreasonable distance for the injured
victim to be forced to travel for a 1.360 Examination.
Plaintiff objects to invasive testing in the form of x-ray or “other
radiographs”
Plaintiff further objects to the date and time of the examination as
same was not coordinated with Plaintiff.
Plaintiff further objects to having to fill out any paperwork or bring
any diagnostic studies.
If the examination(s) does take place on a future date then Plaintiff agrees to appear
for said examination at a mutually acceptable date, time and place sufficiently before trial
to allow Plaintiff to obtain appropriate discovery relating to the doctor’s opinion and the
financial relationship of all medical business entities with which the doctor is affiliated
to Defendant, Defense counsel and any affiliated insurance companies and/or family of
insurance companies on the condition Defendant agrees and stipulates in writing to
accept the reasonable conditions of the Plaintiff in accord with Florida law set forth
hereafter for the physical examination; and on the further condition that the
selected doctor whose specialty is orthopedics AND NOT PSYCHIATRY OR
PSYCHOLOGY, WILL NOT CONDUCT ANY PSYCHOLOGICAL OR
PSYCHIATRIC EXAMINATION OR TESTING OF PLAINTIFF, OR ATTEMPT
TO_RENDER OPINIONS RELATING TO MATTERS PERTAINING TO
PSYCHOLOGY, PSYCHIATRY, CHARACTER OR CREDIBILITY AS THEY
MAY PERTAIN TO PLAINTIFF OR THIS AC IN.
With respect to the requested DME, Plaintiff states with respect to the respective
tights and responsibilities of the parties regarding the requested defense physical
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examination more specifically as follows:
1 PLAINTIFF'S REPRESENTATIVES: Plaintiff's attorney, a
videographer, a court reporter and/or other representative may attend the examination and
record and video tape the examination. See U.S, Security v. Cimino, 754 So.2d 697 (Fla.
2000); Prince v. Mallari, 36 So.3d 128 (Fla. 5 DCA 2010); Lunceford
v. Fla. Cen. R.R.
Co., 728 So.2d 1239 (Fla. 5" DCA 1999); Brompton v. Poy-Wing, 704 So.2d 1127 (Fla.
4" DCA 1998); Broyles v. Reilly, 695 So.2d 832 (Fla. 2d DCA 1997); Bartel _v.
McCarrick, 498 So.2d 1378 (Fla. 4" DCA 1986); and, Byrd _y. Southern Prestressed
Ci ‘oncrete, Inc., 928 So.2d 455 (Fla. 1% DCA 2006). “The law does not permit an
examining expert to dictate who may attend an examination. To do so would
impermissibly permit one party to limit the other's rights simply by selecting an expert
who will only perform examinations without others present.” Maraman_v. State. 980
So.2d 1096 (Fla 2d DCA 2008). Also, as stated by the Fifth District Court of Appeal in
Prince, supra, at page 701: “Whether in the context of a personal injury protection claim
or in an examination pursuant to the civil procedure or workers’ compensation rules, ihe
parties relationship is “adversarial” and a plaintiff is entitled to protection.” At a
minimum, Plaintiff plans to have a videographer in attendance at any DME in this action
and reserves the right to have all other permitted persons in attendance. The Defendants
should be required to arrange in advance of the DME for an examination room sufficient
to allow the attendance of such representative(s) of the Plaintiff, to notify the examining
doctor in advance that one or more representatives of the Plaintiff will attend the DME
and to pay for any additional fee the DME doctor may attempt to extract by reason of the
Plaintiff exercising Plaintiff's legal rights to have such persons, including a videographer,
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in attendance under Florida law. The DME doctor should further be prohibited from not
allowing the videographer to record any portion of the examination and from placing his
body between the camera and the Plaintiff so as to block any portion of the examination.
Likewise the DME doctor must speak loud enough to be recorded on the audio
equipment. There should also be no audio or video recording or any photographing of the
Plaintiff by the DME doctor or any other representative of Defendant during the
examination or while at the premises of the DME doctor based upon the right of privacy
of the Plaintiff, Florida law, and the rational of Prince v. Mallari, supra. See also
Paragraph 9 herein after and Ruiz vy. Carpio, No. 3D11-779 (Fla. 3D DCA 6/22/11).
Finally, the examination should begin at the designated time of 4:00 p.m., and in the
event the doctor is more than fifteen minutes late to begin the examination, then and in
that event the Plaintiff should be permitted to leave the examination and any costs
incurred by the Plaintiff for a videographer or otherwise should be borne by the
Defendant. A videographer from King Reporting or another service, and Plaintiff's
counsel will attend the examination.
2 “IME” REFERENCE IMPROPER: Defense Medical Examinations are
sometimes euphemistically and inaccurately referred to as “Independent Medical
Examinations,” an “IME” or the like, when in truth and fact they are simply examinations
by medical professionals hired by the defense, often on such a recurring basis that some
examiners make six (6) or seven (7) figure incomes annually conducting such
examinations and serving as professional expert witnesses for the defense as part of a
symbiotic, professional, business relationship. Accordingly, the defense doctor
conducting a DME should never be identified as an “IME Doctor,” “independent,”
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“appointed by the Court” or the like during the examination, in any report or at trial as
same would be inaccurate and misleading to a jury. See Rule 1.360(c) Fla.R.Civ.P.
Further, the DME doctor should not refer to, or be permitted by this Honorable Court to
refer to, the examination as an “Independent Medical Examination,” “IME” or the like
during the examination, in his report, or at trial.
3 DME REPORT: The examiner must prepare a detailed written report for
the examination fully and completely disclosing and setting forth a description of his
examination and all medical records and other items reviewed incident thereto, as well as
his findings and opinions, including specifying the results of all tests made, diagnosis and
conclusions. Rule 1.360(b)(1), Fla.R.Civ.P. In accord with Suarez-Burgos v. Morhaim,
745 So.2d 368 (Fla. 4" DCA 1999), Plaintiff will rely upon said written report as
including all of such information, including each and every expert opinion of the DME
doctor relating to Plaintiff.
4 DUE DATE FOR DME REPORT: Reasonable time cut-offs should be
established requiring that the report must be completed within thirty (30) days of the
examination, that Plaintiff's counsel must receive a copy of the report and all test data,
test materials, scoring protocols and all other items, if any, used by the DME within
twenty (20) days of the examination, and the examination must be completed more than
ninety (45) days before trial, so that Plaintiff has an adequate opportunity to obtain
discovery, take the deposition of the DME doctor and/or have the report and other items
examined by treating physicians and/or Plaintiff's specially retained experts.
5 IMPROPER DME REQUESTS: The pleading called Request For Physical
Examination includes one or more improper requests and provisions outside of Rule
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1.360, Fla.R.Civ.P. Accordingly, Plaintiff has no duty to comply with such provisions,
including but not limited to provisions not provided for under Rule 1.360 F.R.Civ.P.
Further, Defendant’s Notice of Compulsory Physical Examination states no specific
“manner, conditions and scope of the examination,” and Plaintiff hereby states that
Plaintiff has no duty with regard to the following:
A Providing a medical history. The subject rule does not require the Plaintiff
to provide a prior medical history to the DME doctor. Defendant has had
an adequate opportunity to obtain Plaintiff's medical records and any
reports, test results, imaging films and raw data from Plaintiff's treating
medical doctors and other medical care providers which the Defendant
may want the DME doctor to review. Therefore, any and all medical
history and information which the defense desires for the DME doctor to
review should be provided to the DME doctor by the defense. See also
Paragraph Six (6) herein after.
A psychological or psychiatric history or examination. Said expert is an
orthopaedic surgeon who is not a psychiatrist or psychologist and should
not be conducting any psychological examination of the Plaintiff, nor
should the examiner conduct a psychiatric examination, as both are
outside the examiner’s area of expertise and/or licensing by the state of
Florida.
Being subjected to giving an unsworn deposition or witness statement.
Under no circumstances should the DME doctor go into issues of fault or
otherwise conduct an unsworn “defense deposition” or obtain a defense
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witness statement, directly or indirectly, of Plaintiff as part of the
examination. For example, the DME doctor may not inquire into matters
of fault, when Plaintiff hired legal counsel, who referred Plaintiff to any
particular medical care provider or other matters which are irrelevant to
the purpose of the examination and/or would compromise any legal
privilege or right of Plaintiff. The DME examination purpose is to
determine the extent of the accident related injuries, if any, of the Plaintiff,
not to have the DME doctor gather discovery outside the scope of the
examination and expertise of the doctor.
The Plaintiff has no obligation to bring any medical records, MRI, CT
Scan, X Ray and other films or other items to the examination under said
rule; and
Further, absent prior Court order based on good cause shown, Plaintiff is
not required to submit to x-rays and other unspecified tests. At a
minimum, any and all medical tests utilizing medical equipment should be
expressly specified in the Notice, and they are not so specified in accord
with the requirement of the rule that the “request shall specify a
reasonable...manner, conditions and scope of the examination”... . Also x-
ray and other invasive and non-invasive medical testing is not permitted
under the Rule without order of Court entered after a hearing authorizing
same upon a showing of good cause established by the defense for such
testing.
MEDICAL HISTORY: The subject Rule provides for a physical
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examination, and does not require Plaintiff to provide a medical history to the defense
medical examiner. Also, the Plaintiff should not be requested or required by the DME
doctor to fill out any written medical history or other forms other than as may be
necessary to establish the identity of Plaintiff. Further, the defense has had an adequate
opportunity to obtain Plaintiff's medical records and any diagnostic films, test results,
medical records and reports, and depositions of Plaintiff and others taken in this action
which the defense may want the DME doctor to review, and therefore, the defense has
had an opportunity to obtain a medical history of Plaintiff and to obtain the x-rays and
other items the defense may want to have for the DME at or before the examination.
Accordingly, the defense medical examiner should obtain Plaintiffs medical history from
defense counsel.
Other than obtaining pertinent information from the examination of the Plaintiff,
under no circumstances should the DME doctor be a “Surrogate Attorney” conducting
“discovery” for the defense, including but not limited to improperly questioning the
Plaintiff about years of medical conditions and treatment, before or after the subject
accident, without Plaintiff having medical records in front of Plaintiff and having to rely
upon raw memory. All of such past and accident related medical history and treatment
information can be readily obtained by the DME doctor reviewing discovery obtained in
the action by defense attorneys, including but not limited to medical records obtained
properly through the discovery mechanisms provided under the Florida Rules of Civil
Procedure. It is clear that many crafty professional forensic expert witnesses utilized by
the defense do in fact attempt to engage in such discovery and seek to make the Plaintiff
look bad by seeking memory based information in an effort to try to show bad character
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and/or credibility for purposes of the “fraud on the Court strategy” referred to by Judge
Griffin so perspicaciously and accurately in Bologna y. Schlanger, 995 So.2d 526, 529
(Fla. 5" DCA 2008). Sometimes it even appears that such experts may have been
“coached” by defense counsel on the areas to probe to try to set up and carry out a “fraud
on the court strategy.” One needs only to look at how defense counsel attempt to use a
Plaintiff's inability to have total recall of such matters at a DME as a basis for the current
“motion du jour” of the defense, the ubiquitous “fraud on the court” motion. Broad
based inquiries into irrelevant matters ,and questions designed to test the recall of the
Plaintiff on past medical history, are not for the purpose of conducting a medical
examination to determine the nature and extent of any accident related injuries, but
rather, are simply for the purpose of attempting to elicit an inconsistency between the
recollection by the Plaintiff of Plaintiff's past medical history and what the Plaintiff's
medical records (which properly should have been provided by the defense to the DME
doctor) show to be the past medical history. Also the defense medical examiner should
not be allowed to question Plaintiff with questions pertaining to when Plaintiff hired an
attorney, who referred Plaintiff to any doctor or to pose any other questions which would
compromise any privilege of Plaintiff. Such questions are not necessary for the defense
medical examiner to formulate an opinion as to Plaintiff's medical condition and the
extent of Plaintiff's injuries alleged in this action.
7 IMPROPER AREAS OF
CHARACTER AND CREDIBILITY
INQUIRY: Certain physicians conducting physical examinations routinely claim in
DME examinations that plaintiffs have psychiatric or psychological conditions or are
malingering or seeking secondary gain, all of which constitute improper character and/or
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credibility evidence outside the scope of the DME doctor’s expertise, and such physicians
also often attempt to comment in their reports, at deposition and at trial upon the
character and credibility of accident victims who they examine as a defense medical
examiner and/or accident victims in general. Such inclusions ina DME report and during
testimony are contrary to Florida law, including Fla. Stat. §90.404, §90.608-90.610;
Tingle v. State, 536 So,2d 202 (Fla. 1988); Mills v. Red Wing Carriers, Inc., 127 So.2d
453 (Fla. 2"! DCA 1961); Davis v. State, 527 So.2d 962 (Fla. S DCA 1988); Norris v.
State, 525 So.2d 998 (Fla. 5" DCA 1988); and, Page v. Zordan, 564 So.2d 500 (Fla. 2"4
DCA 1990). Further, some DME doctors seek to have persons examined by them
complete MMPI II personality profile tests or other psychological tests even though the
doctor is not a psychologist and such testing is outside the scope of the doctor's expertise
and licensure, and then the doctor may attempt to use the testing as a means of placing
improper character and credibility evidence before the jury. Accordingly, the scope of
the DME physical examination must be carefully circumscribed by this Court in order
that such improper psychiatric, psychological, character and credibility evidence is
prohibited from being generated by this DME doctor, absent which it would not be fair,
proper and within the spirit of the subject rule for this doctor to conduct a physical
examination of this Plaintiff if the doctor plans to venture into such areas. Also, it is not
unusual that a DME doctor chosen by the defense to perform a DME will offer a different
opinion than the Plaintiff's treating doctors conceming Plaintiff's physical condition,
whether or not the Plaintiff sustained a permanent injury, and whether or not Plaintiff will
need future medical care. Unfortunately, some DME doctors then attempt to bolster their
opinions by noting that the past medical history recalled by Plaintiff during the DME was
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different than the actual medical records, and thereby, improperly attack the veracity and
credibility of the Plaintiff. Such inquiry regarding Plaintiff's independent recall of past
medical history is for the defense attorney to pursue via interrogatories and deposition of
the Plaintiff and is outside the purview of Rule 1.360. Any argument that the DME doctor
needs to make such inquiry of Plaintiff is specious given the broad discovery afforded the
defense regarding past medical history of Plaintiff and other discoverable matters under
Rule 1.280 F.R.Civ.P.. In fact, it is almost unheard of as a practical matter for the defense
to not provide the DME doctor with prior medical records of a Plaintiff at or before the
time of a DME examination.
8 DME DOCTOR ONLY DEFENSE REPRESENTATIVE
PERMITTED/NO VIDEO OR AUDIO RECORDING BY DEFENDANT: Defendant
should not be allowed to have any videographer or other representative at the
examination besides the designated defense medical examiner by reason of the following:
A DME examination allows a minimal invasion of the right of privacy of a
patient to allow a physical or mental examination of the Plaintiff by a physician selected
by the defense with respect to a physical or mental condition in controversy per Rule
1.360 Fla.R.Civ.P,
I ‘There exists no authority under Rule 1.360 Fla.R.Ciy.P., by statute,
or under Florida case law to allow a videographer or other
representative of the Defendant, other than the DME doctor, to
attend the DME. In fact, the First District Court of Appeal in
Chavez v. J & L_ Drywall, 858 So.2d 1266 (Fla. 1* DCA 2003),
held that a defense attorney could not attend a CME, emphasizing
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Filing 134817770 L POTTER VS EMANUEL JACKSON 05-2021-CA-019085-XXXX-XX
the privacy rights of the patient examinee. Referring to the
attendance of the Plaintiff's attorney and a videographer at a DME,
and citing Chavez, the Fifth District Court of Appeal in Prince v.
Mallari, supra, stated “Natalie Prince has the right to such
protections, but Defendant has no such right and needs no such
protection....4 plaintiff has a privacy interest that deserves
protection and the defendant already is represented by the
examiner.”
th Defendant in this case should not be allowed to do indirectly via a
videographer what Defendant cannot do directly under Chavez and
Prince v. Mallari, supra. See also Ruiz v. Carpio, No. 3D11-779
(Fla. 3D DCA 6/22/11) adopting the reasoning and holding Prince
v. Mallari, supra.
Hil. Plaintiff is entitled to have an attorney, court reporter,
videographer or other representative attend the DME because of
the recognized adversarial nature of a DME and the need to protect
the rights of the patient Plaintiff. No concomitant need exists for
the party hiring the DME doctor who is performing the
examination on behalf of the Defendants as the expert witness
agent of the Defendants and their insurance carrier.
IV Under HIPAA, the Federal government has recognized the sanctity
of a patient’s rights to privacy with respect to medical and
psychological matters and records, and only under limited,
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necessary, carefully circumscribed circumstances justifying
intrusion of that right is a third party allowed to invade an
individual’s right to privacy on a limited basis.
The privacy of the examinee, not the examiner, is the issue, and
therefore, the defense has no need or right to record the DME by
any means or to have a videographer, court reporter attorney, or
other representative present besides the examining doctor at a
DME conducted by the very medical expert it hired who will have
first hand knowledge of the examination conducted by him/her,
author a written report to defense counsel and be able to consult
with defense counsel with respect to the examination as a specially
hired, professional expert witness. See Stakley v, Allstate Ins. Co.,
547 So.2d 275 (Fla. 2% DCA 1989). See also Chavez. Prince v.
Mi allari, and Ruiz_v Carpio, supra.
9 PROTECTION OF PLAINTIFF'S RIGHT OF PRIVACY: Plaintiff
hereby requests that absent stipulation by the Defendant that this Honorable Court enter
an order providing that Plaintiff's right of privacy under the U.S. Constitution and Florida
Constitution shall not be violated except to the extent of the minimal intrusion into that
right permitted under Florida law for the Rule 1.360 physical examination to be
conducted in order to determine (1) whether Plaintiff sustained physical injuries in the
subject accident; and if so, (2) the nature, extent and effect of the injuries; and (3) the
reasonable and necessary medical care and treatment in the past and future relating to
such injuries. The Rule 1.360 examination should be as minimally invasive as possible to
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balance the right of privacy, HIPAA and other rights of the Plaintiff with the rights of the
Defendant under Rule 1,360. In accord with HIPAA, the medical information gathered
and generated, including the DME report and related materials, with respect to Plaintiff
should not be disseminated by defense counsel, the DME doctor or anyone else to any
third parties absent order of this Court permitting same, and further, the DME report
should not be placed in the Court record or any other public record absent express order
of the Court.
10. WORK PRODUCT PRIVILEGE: The audio and video recordings and any
transcript of the examination shall remain the work product of Plaintiff's counsel unless
and until they are used in direct or cross-examination of a witness at deposition or are
listed as exhibits to be used at trial, whereupon, the work product privilege shall be
deemed waived and upon written request and payment of a reasonable charge for a copy,
the Defendants shall be entitled to receive a copy of each such item(s) for which the word
product privilege has been waived. McGarrah v. Bayfront Medical Center, Inc., 889
So.2d 923 (Fla. 2"! DCA 2004).
ll. BOECHER AND ELKINS COMPLIANCE: In accord with the Request
For Production set forth herein below, the Defendants, and the defense insurance carrier,
attorneys and representatives should be required to provide within thirty (30) days of the
examination without further request by Plaintiffall “Boecher” information with respect to
them and the defense medical examiner in accord with Boecher_v. Allstate Insurance
Company, 733 So.2d 993 (Fla. 1999) for at least a three (3) year period prior to the
examination. Also, as a condition for being allowed to conduct the defense medical
examination, the defense medical examiner expert should be required by this Honorable
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Court to maintain and agree to provide all “Elkins” information in accord with Elkins v.
Syken, 672 So.2d 517 (Fla. 1996) and Rule 1.280(b)(4)(A)Gii).
12. PLAINTIFF'S OFFER _OF STIPULATED AGREEMENT: Plaintiff is
agreeable to a signed stipulation or a stipulated order consistent with the foregoing
allowing a Rule 1.360 physical examination by the DME date, time and place at least
sixty days or more before the trial.
13. COURT ORDER IN ABSENCE OF STIPULATED AGREEMENT: In
the absence of stipulation between the parties regarding the examination or agreement for
entry of a stipulated order, per Rule 1.360 (a)(1)(B)(3), Fla.R.Civ.P. “the court may
establish protective rulings governing such examination,” and the Court should require
the Defendant to comply with the reasonable conditions outlined by Plaintiff herein
above, including at a minimum requiring the examination to occur in Brevard County,
Florida at least ninety days before the trial docket term, limiting the Defendant to one
DME physical examination of the Plaintiff and prohibiting the DME doctor from acting
as a “Surrogate Defense Attorney” and from engaging in or rendering, as the case may
be, any psychological, psychiatric, character or credibility inquiry, examination, testing
or opinions.
14_NO STIPULATION AS TO AUTHENTICITY OF MEDICAL RECORDS
Plaintiff 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 shal] 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. See § 90.803(6), Fla. Stat. (2011);
is
Filing 134817770 L POTTER VS EMANUEL JACKSON 05-2021-CA-019085-XXXX-XX
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.
Ist 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); and Smithson v.
VMS Realty, Inc., 536 So. 2d 260 (Fla. 3d DCA 1988).
15. NO INTAKE PAPERWORK REQUIRED. Plaintiff shall not be required
to fill out any forms or documents except to provide identifying information and
sufficient proof of identity through a state-issued ID card.
16. TIMELY EXAMINATION REQUIRED: Should Dr. Brett A. Osborn
Defendant’s retained medical witness, not begin conducting the scheduled examination
by 30 minutes of the scheduled time. Plaintiff if free to leave.
17. LIMITED SCOPE OF EXAMINATION: That the examination should be
limited in scope to those areas of the body which the Court determines Defendant has met
its burden of proof.
18. Defendants are responsible for informing the examiner of the conditions
applicable to the exam set forth herein.
WHEREFORE IN ABSENCE OF STIPULATED AGREEMENT: In the absence of
stipulation between the parties regarding the examination or agreement for entry of a
stipulated order, per Rule 1.360 (a)(1)(B)(3), Fla.R.Civ.P. “the court may establish
protective rulings governing such examination,” and the Court should require the
Defendant to comply with the reasonable conditions outlined by Plaintiff herein above,
including at a minimum requiring the examination to occur in Brevard County, Florida at
least ninety days before the trial docket term, limiting the Defendant to one DME
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physical examination of the Plaintiff and prohibiting the DME doctor from acting as a
“Surrogate Defense Attorney” and from engaging in or rendering, as the case may be.
any psychological, psychiatric, character or credibility inquiry, examination, testing or
opinion testing or opinions.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished via E-mail and/or the Florida Courts ePortal to the following Sebastian C.
Mejia Esq. semé @kubickideaper. com, Hans Laurenceau Laurencea a. COM
Har OM; "Nuesa, Valerie VNuesa(@)ge' om; Tara B. Ratanun,
idray non this the 17th day of September, 2021
GILLIN, GILLIN & LINDBAEK, P.A.
Counselors for Plaintiff
222 N. Harbor City Blvd
Melbourne Florida 32935
Telephone 321 729-1444
By. /s/ Erie S. Gillin,
Eric S. Gillin, Esq.
Florida Bar No. 168629
Primary email: ¢ ri¢@brevardjustice.com
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Filing 134817770 L POTTER VS EMANUEL JACKSON 05-2021-CA-019085-XXXX-XX
Preview
Filing # 134817770 E-Filed 09/17/2021 02:40:01 PM IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT IN AND FOR BREVARD COUNTY, FLORIDA LINDA NOLAN POTTER, CASE NO.: 05-2021-CA-019085-XXXX-XX Plaintiff, VS. EMANUEL JACKSON, and UNITED SERVICES AUTOMOBILE ASSOCIATION, a foreign for profit corporation, and GEICO GENERAL INSURANCE COMPANY, a foreign for profit corporation, Defendants. / PLAINTIFE’S RESPONSE AND OBJECTIONS TO UNAUTHORIZED CONDITIONS IN DEFENDANTS’ REQUEST FOR PHYSICAL EXAMINATION Plaintiff, LINDA POTTER hereby responds and objects to the Notices of Examinations served on Plaintiff seeking a Defense Medical Examinations (“(DME” hereinafter) of Plaintiff as unilaterally scheduled by Defendant USAA to be conducted by Dr. Brett A. Osborn at his offices located at 600 Heritage Drive, Suite 105, Jupiter, FL 33458. Said examination is set for October 12, 2021 at 12:00 PM. 1. Plaintiff objects to the conditions of the examination, as the notice did not specifically been set forth as required by the rule and case law which requires Defendant to specify the scope of the examination, See Maddox v. Bullard, 141 So. 3d 1264 (Fla 5 DCA 2014) and Espinosa v. D.H. Griffin Construction Company, LLC 187 So. 3d 1273 (Fla. 3d DCA 2016). Plaintiff further objects to the 7 day notice provision as well as any cancellation fees as the rule makes no such provisions. Filing 134817770 L POTTER VS EMANUEL JACKSON 05-2021-CA-019085-XXXX-XX 3. Plaintiff objects to the location of the Examination as it has been set approximately 100 miles one way from Plaintiff's residence in Martin County, Florida. This is an unreasonable distance for the injured victim to be forced to travel for a 1.360 Examination. Plaintiff objects to invasive testing in the form of x-ray or “other radiographs” Plaintiff further objects to the date and time of the examination as same was not coordinated with Plaintiff. Plaintiff further objects to having to fill out any paperwork or bring any diagnostic studies. If the examination(s) does take place on a future date then Plaintiff agrees to appear for said examination at a mutually acceptable date, time and place sufficiently before trial to allow Plaintiff to obtain appropriate discovery relating to the doctor’s opinion and the financial relationship of all medical business entities with which the doctor is affiliated to Defendant, Defense counsel and any affiliated insurance companies and/or family of insurance companies on the condition Defendant agrees and stipulates in writing to accept the reasonable conditions of the Plaintiff in accord with Florida law set forth hereafter for the physical examination; and on the further condition that the selected doctor whose specialty is orthopedics AND NOT PSYCHIATRY OR PSYCHOLOGY, WILL NOT CONDUCT ANY PSYCHOLOGICAL OR PSYCHIATRIC EXAMINATION OR TESTING OF PLAINTIFF, OR ATTEMPT TO_RENDER OPINIONS RELATING TO MATTERS PERTAINING TO PSYCHOLOGY, PSYCHIATRY, CHARACTER OR CREDIBILITY AS THEY MAY PERTAIN TO PLAINTIFF OR THIS AC IN. With respect to the requested DME, Plaintiff states with respect to the respective tights and responsibilities of the parties regarding the requested defense physical 2 Filing 134817770 L POTTER VS EMANUEL JACKSON 05-2021-CA-019085-XXXX-XX examination more specifically as follows: 1 PLAINTIFF'S REPRESENTATIVES: Plaintiff's attorney, a videographer, a court reporter and/or other representative may attend the examination and record and video tape the examination. See U.S, Security v. Cimino, 754 So.2d 697 (Fla. 2000); Prince v. Mallari, 36 So.3d 128 (Fla. 5 DCA 2010); Lunceford v. Fla. Cen. R.R. Co., 728 So.2d 1239 (Fla. 5" DCA 1999); Brompton v. Poy-Wing, 704 So.2d 1127 (Fla. 4" DCA 1998); Broyles v. Reilly, 695 So.2d 832 (Fla. 2d DCA 1997); Bartel _v. McCarrick, 498 So.2d 1378 (Fla. 4" DCA 1986); and, Byrd _y. Southern Prestressed Ci ‘oncrete, Inc., 928 So.2d 455 (Fla. 1% DCA 2006). “The law does not permit an examining expert to dictate who may attend an examination. To do so would impermissibly permit one party to limit the other's rights simply by selecting an expert who will only perform examinations without others present.” Maraman_v. State. 980 So.2d 1096 (Fla 2d DCA 2008). Also, as stated by the Fifth District Court of Appeal in Prince, supra, at page 701: “Whether in the context of a personal injury protection claim or in an examination pursuant to the civil procedure or workers’ compensation rules, ihe parties relationship is “adversarial” and a plaintiff is entitled to protection.” At a minimum, Plaintiff plans to have a videographer in attendance at any DME in this action and reserves the right to have all other permitted persons in attendance. The Defendants should be required to arrange in advance of the DME for an examination room sufficient to allow the attendance of such representative(s) of the Plaintiff, to notify the examining doctor in advance that one or more representatives of the Plaintiff will attend the DME and to pay for any additional fee the DME doctor may attempt to extract by reason of the Plaintiff exercising Plaintiff's legal rights to have such persons, including a videographer, 3 Filing 134817770 L POTTER VS EMANUEL JACKSON 05-2021-CA-019085-XXXX-XX in attendance under Florida law. The DME doctor should further be prohibited from not allowing the videographer to record any portion of the examination and from placing his body between the camera and the Plaintiff so as to block any portion of the examination. Likewise the DME doctor must speak loud enough to be recorded on the audio equipment. There should also be no audio or video recording or any photographing of the Plaintiff by the DME doctor or any other representative of Defendant during the examination or while at the premises of the DME doctor based upon the right of privacy of the Plaintiff, Florida law, and the rational of Prince v. Mallari, supra. See also Paragraph 9 herein after and Ruiz vy. Carpio, No. 3D11-779 (Fla. 3D DCA 6/22/11). Finally, the examination should begin at the designated time of 4:00 p.m., and in the event the doctor is more than fifteen minutes late to begin the examination, then and in that event the Plaintiff should be permitted to leave the examination and any costs incurred by the Plaintiff for a videographer or otherwise should be borne by the Defendant. A videographer from King Reporting or another service, and Plaintiff's counsel will attend the examination. 2 “IME” REFERENCE IMPROPER: Defense Medical Examinations are sometimes euphemistically and inaccurately referred to as “Independent Medical Examinations,” an “IME” or the like, when in truth and fact they are simply examinations by medical professionals hired by the defense, often on such a recurring basis that some examiners make six (6) or seven (7) figure incomes annually conducting such examinations and serving as professional expert witnesses for the defense as part of a symbiotic, professional, business relationship. Accordingly, the defense doctor conducting a DME should never be identified as an “IME Doctor,” “independent,” 4 Filing 134817770 L POTTER VS EMANUEL JACKSON 05-2021-CA-019085-XXXX-XX “appointed by the Court” or the like during the examination, in any report or at trial as same would be inaccurate and misleading to a jury. See Rule 1.360(c) Fla.R.Civ.P. Further, the DME doctor should not refer to, or be permitted by this Honorable Court to refer to, the examination as an “Independent Medical Examination,” “IME” or the like during the examination, in his report, or at trial. 3 DME REPORT: The examiner must prepare a detailed written report for the examination fully and completely disclosing and setting forth a description of his examination and all medical records and other items reviewed incident thereto, as well as his findings and opinions, including specifying the results of all tests made, diagnosis and conclusions. Rule 1.360(b)(1), Fla.R.Civ.P. In accord with Suarez-Burgos v. Morhaim, 745 So.2d 368 (Fla. 4" DCA 1999), Plaintiff will rely upon said written report as including all of such information, including each and every expert opinion of the DME doctor relating to Plaintiff. 4 DUE DATE FOR DME REPORT: Reasonable time cut-offs should be established requiring that the report must be completed within thirty (30) days of the examination, that Plaintiff's counsel must receive a copy of the report and all test data, test materials, scoring protocols and all other items, if any, used by the DME within twenty (20) days of the examination, and the examination must be completed more than ninety (45) days before trial, so that Plaintiff has an adequate opportunity to obtain discovery, take the deposition of the DME doctor and/or have the report and other items examined by treating physicians and/or Plaintiff's specially retained experts. 5 IMPROPER DME REQUESTS: The pleading called Request For Physical Examination includes one or more improper requests and provisions outside of Rule 5 Filing 134817770 L POTTER VS EMANUEL JACKSON 05-2021-CA-019085-XXXX-XX 1.360, Fla.R.Civ.P. Accordingly, Plaintiff has no duty to comply with such provisions, including but not limited to provisions not provided for under Rule 1.360 F.R.Civ.P. Further, Defendant’s Notice of Compulsory Physical Examination states no specific “manner, conditions and scope of the examination,” and Plaintiff hereby states that Plaintiff has no duty with regard to the following: A Providing a medical history. The subject rule does not require the Plaintiff to provide a prior medical history to the DME doctor. Defendant has had an adequate opportunity to obtain Plaintiff's medical records and any reports, test results, imaging films and raw data from Plaintiff's treating medical doctors and other medical care providers which the Defendant may want the DME doctor to review. Therefore, any and all medical history and information which the defense desires for the DME doctor to review should be provided to the DME doctor by the defense. See also Paragraph Six (6) herein after. A psychological or psychiatric history or examination. Said expert is an orthopaedic surgeon who is not a psychiatrist or psychologist and should not be conducting any psychological examination of the Plaintiff, nor should the examiner conduct a psychiatric examination, as both are outside the examiner’s area of expertise and/or licensing by the state of Florida. Being subjected to giving an unsworn deposition or witness statement. Under no circumstances should the DME doctor go into issues of fault or otherwise conduct an unsworn “defense deposition” or obtain a defense 6 Filing 134817770 L POTTER VS EMANUEL JACKSON 05-2021-CA-019085-XXXX-XX witness statement, directly or indirectly, of Plaintiff as part of the examination. For example, the DME doctor may not inquire into matters of fault, when Plaintiff hired legal counsel, who referred Plaintiff to any particular medical care provider or other matters which are irrelevant to the purpose of the examination and/or would compromise any legal privilege or right of Plaintiff. The DME examination purpose is to determine the extent of the accident related injuries, if any, of the Plaintiff, not to have the DME doctor gather discovery outside the scope of the examination and expertise of the doctor. The Plaintiff has no obligation to bring any medical records, MRI, CT Scan, X Ray and other films or other items to the examination under said rule; and Further, absent prior Court order based on good cause shown, Plaintiff is not required to submit to x-rays and other unspecified tests. At a minimum, any and all medical tests utilizing medical equipment should be expressly specified in the Notice, and they are not so specified in accord with the requirement of the rule that the “request shall specify a reasonable...manner, conditions and scope of the examination”... . Also x- ray and other invasive and non-invasive medical testing is not permitted under the Rule without order of Court entered after a hearing authorizing same upon a showing of good cause established by the defense for such testing. MEDICAL HISTORY: The subject Rule provides for a physical 7 Filing 134817770 L POTTER VS EMANUEL JACKSON 05-2021-CA-019085-XXXX-XX examination, and does not require Plaintiff to provide a medical history to the defense medical examiner. Also, the Plaintiff should not be requested or required by the DME doctor to fill out any written medical history or other forms other than as may be necessary to establish the identity of Plaintiff. Further, the defense has had an adequate opportunity to obtain Plaintiff's medical records and any diagnostic films, test results, medical records and reports, and depositions of Plaintiff and others taken in this action which the defense may want the DME doctor to review, and therefore, the defense has had an opportunity to obtain a medical history of Plaintiff and to obtain the x-rays and other items the defense may want to have for the DME at or before the examination. Accordingly, the defense medical examiner should obtain Plaintiffs medical history from defense counsel. Other than obtaining pertinent information from the examination of the Plaintiff, under no circumstances should the DME doctor be a “Surrogate Attorney” conducting “discovery” for the defense, including but not limited to improperly questioning the Plaintiff about years of medical conditions and treatment, before or after the subject accident, without Plaintiff having medical records in front of Plaintiff and having to rely upon raw memory. All of such past and accident related medical history and treatment information can be readily obtained by the DME doctor reviewing discovery obtained in the action by defense attorneys, including but not limited to medical records obtained properly through the discovery mechanisms provided under the Florida Rules of Civil Procedure. It is clear that many crafty professional forensic expert witnesses utilized by the defense do in fact attempt to engage in such discovery and seek to make the Plaintiff look bad by seeking memory based information in an effort to try to show bad character 8 Filing 134817770 L POTTER VS EMANUEL JACKSON 05-2021-CA-019085-XXXX-XX and/or credibility for purposes of the “fraud on the Court strategy” referred to by Judge Griffin so perspicaciously and accurately in Bologna y. Schlanger, 995 So.2d 526, 529 (Fla. 5" DCA 2008). Sometimes it even appears that such experts may have been “coached” by defense counsel on the areas to probe to try to set up and carry out a “fraud on the court strategy.” One needs only to look at how defense counsel attempt to use a Plaintiff's inability to have total recall of such matters at a DME as a basis for the current “motion du jour” of the defense, the ubiquitous “fraud on the court” motion. Broad based inquiries into irrelevant matters ,and questions designed to test the recall of the Plaintiff on past medical history, are not for the purpose of conducting a medical examination to determine the nature and extent of any accident related injuries, but rather, are simply for the purpose of attempting to elicit an inconsistency between the recollection by the Plaintiff of Plaintiff's past medical history and what the Plaintiff's medical records (which properly should have been provided by the defense to the DME doctor) show to be the past medical history. Also the defense medical examiner should not be allowed to question Plaintiff with questions pertaining to when Plaintiff hired an attorney, who referred Plaintiff to any doctor or to pose any other questions which would compromise any privilege of Plaintiff. Such questions are not necessary for the defense medical examiner to formulate an opinion as to Plaintiff's medical condition and the extent of Plaintiff's injuries alleged in this action. 7 IMPROPER AREAS OF CHARACTER AND CREDIBILITY INQUIRY: Certain physicians conducting physical examinations routinely claim in DME examinations that plaintiffs have psychiatric or psychological conditions or are malingering or seeking secondary gain, all of which constitute improper character and/or 9 Filing 134817770 L POTTER VS EMANUEL JACKSON 05-2021-CA-019085-XXXX-XX credibility evidence outside the scope of the DME doctor’s expertise, and such physicians also often attempt to comment in their reports, at deposition and at trial upon the character and credibility of accident victims who they examine as a defense medical examiner and/or accident victims in general. Such inclusions ina DME report and during testimony are contrary to Florida law, including Fla. Stat. §90.404, §90.608-90.610; Tingle v. State, 536 So,2d 202 (Fla. 1988); Mills v. Red Wing Carriers, Inc., 127 So.2d 453 (Fla. 2"! DCA 1961); Davis v. State, 527 So.2d 962 (Fla. S DCA 1988); Norris v. State, 525 So.2d 998 (Fla. 5" DCA 1988); and, Page v. Zordan, 564 So.2d 500 (Fla. 2"4 DCA 1990). Further, some DME doctors seek to have persons examined by them complete MMPI II personality profile tests or other psychological tests even though the doctor is not a psychologist and such testing is outside the scope of the doctor's expertise and licensure, and then the doctor may attempt to use the testing as a means of placing improper character and credibility evidence before the jury. Accordingly, the scope of the DME physical examination must be carefully circumscribed by this Court in order that such improper psychiatric, psychological, character and credibility evidence is prohibited from being generated by this DME doctor, absent which it would not be fair, proper and within the spirit of the subject rule for this doctor to conduct a physical examination of this Plaintiff if the doctor plans to venture into such areas. Also, it is not unusual that a DME doctor chosen by the defense to perform a DME will offer a different opinion than the Plaintiff's treating doctors conceming Plaintiff's physical condition, whether or not the Plaintiff sustained a permanent injury, and whether or not Plaintiff will need future medical care. Unfortunately, some DME doctors then attempt to bolster their opinions by noting that the past medical history recalled by Plaintiff during the DME was 10 Filing 134817770 L POTTER VS EMANUEL JACKSON 05-2021-CA-019085-XXXX-XX different than the actual medical records, and thereby, improperly attack the veracity and credibility of the Plaintiff. Such inquiry regarding Plaintiff's independent recall of past medical history is for the defense attorney to pursue via interrogatories and deposition of the Plaintiff and is outside the purview of Rule 1.360. Any argument that the DME doctor needs to make such inquiry of Plaintiff is specious given the broad discovery afforded the defense regarding past medical history of Plaintiff and other discoverable matters under Rule 1.280 F.R.Civ.P.. In fact, it is almost unheard of as a practical matter for the defense to not provide the DME doctor with prior medical records of a Plaintiff at or before the time of a DME examination. 8 DME DOCTOR ONLY DEFENSE REPRESENTATIVE PERMITTED/NO VIDEO OR AUDIO RECORDING BY DEFENDANT: Defendant should not be allowed to have any videographer or other representative at the examination besides the designated defense medical examiner by reason of the following: A DME examination allows a minimal invasion of the right of privacy of a patient to allow a physical or mental examination of the Plaintiff by a physician selected by the defense with respect to a physical or mental condition in controversy per Rule 1.360 Fla.R.Civ.P, I ‘There exists no authority under Rule 1.360 Fla.R.Ciy.P., by statute, or under Florida case law to allow a videographer or other representative of the Defendant, other than the DME doctor, to attend the DME. In fact, the First District Court of Appeal in Chavez v. J & L_ Drywall, 858 So.2d 1266 (Fla. 1* DCA 2003), held that a defense attorney could not attend a CME, emphasizing AL Filing 134817770 L POTTER VS EMANUEL JACKSON 05-2021-CA-019085-XXXX-XX the privacy rights of the patient examinee. Referring to the attendance of the Plaintiff's attorney and a videographer at a DME, and citing Chavez, the Fifth District Court of Appeal in Prince v. Mallari, supra, stated “Natalie Prince has the right to such protections, but Defendant has no such right and needs no such protection....4 plaintiff has a privacy interest that deserves protection and the defendant already is represented by the examiner.” th Defendant in this case should not be allowed to do indirectly via a videographer what Defendant cannot do directly under Chavez and Prince v. Mallari, supra. See also Ruiz v. Carpio, No. 3D11-779 (Fla. 3D DCA 6/22/11) adopting the reasoning and holding Prince v. Mallari, supra. Hil. Plaintiff is entitled to have an attorney, court reporter, videographer or other representative attend the DME because of the recognized adversarial nature of a DME and the need to protect the rights of the patient Plaintiff. No concomitant need exists for the party hiring the DME doctor who is performing the examination on behalf of the Defendants as the expert witness agent of the Defendants and their insurance carrier. IV Under HIPAA, the Federal government has recognized the sanctity of a patient’s rights to privacy with respect to medical and psychological matters and records, and only under limited, 12 Filing 134817770 L POTTER VS EMANUEL JACKSON 05-2021-CA-019085-XXXX-XX necessary, carefully circumscribed circumstances justifying intrusion of that right is a third party allowed to invade an individual’s right to privacy on a limited basis. The privacy of the examinee, not the examiner, is the issue, and therefore, the defense has no need or right to record the DME by any means or to have a videographer, court reporter attorney, or other representative present besides the examining doctor at a DME conducted by the very medical expert it hired who will have first hand knowledge of the examination conducted by him/her, author a written report to defense counsel and be able to consult with defense counsel with respect to the examination as a specially hired, professional expert witness. See Stakley v, Allstate Ins. Co., 547 So.2d 275 (Fla. 2% DCA 1989). See also Chavez. Prince v. Mi allari, and Ruiz_v Carpio, supra. 9 PROTECTION OF PLAINTIFF'S RIGHT OF PRIVACY: Plaintiff hereby requests that absent stipulation by the Defendant that this Honorable Court enter an order providing that Plaintiff's right of privacy under the U.S. Constitution and Florida Constitution shall not be violated except to the extent of the minimal intrusion into that right permitted under Florida law for the Rule 1.360 physical examination to be conducted in order to determine (1) whether Plaintiff sustained physical injuries in the subject accident; and if so, (2) the nature, extent and effect of the injuries; and (3) the reasonable and necessary medical care and treatment in the past and future relating to such injuries. The Rule 1.360 examination should be as minimally invasive as possible to 13 Filing 134817770 L POTTER VS EMANUEL JACKSON 05-2021-CA-019085-XXXX-XX balance the right of privacy, HIPAA and other rights of the Plaintiff with the rights of the Defendant under Rule 1,360. In accord with HIPAA, the medical information gathered and generated, including the DME report and related materials, with respect to Plaintiff should not be disseminated by defense counsel, the DME doctor or anyone else to any third parties absent order of this Court permitting same, and further, the DME report should not be placed in the Court record or any other public record absent express order of the Court. 10. WORK PRODUCT PRIVILEGE: The audio and video recordings and any transcript of the examination shall remain the work product of Plaintiff's counsel unless and until they are used in direct or cross-examination of a witness at deposition or are listed as exhibits to be used at trial, whereupon, the work product privilege shall be deemed waived and upon written request and payment of a reasonable charge for a copy, the Defendants shall be entitled to receive a copy of each such item(s) for which the word product privilege has been waived. McGarrah v. Bayfront Medical Center, Inc., 889 So.2d 923 (Fla. 2"! DCA 2004). ll. BOECHER AND ELKINS COMPLIANCE: In accord with the Request For Production set forth herein below, the Defendants, and the defense insurance carrier, attorneys and representatives should be required to provide within thirty (30) days of the examination without further request by Plaintiffall “Boecher” information with respect to them and the defense medical examiner in accord with Boecher_v. Allstate Insurance Company, 733 So.2d 993 (Fla. 1999) for at least a three (3) year period prior to the examination. Also, as a condition for being allowed to conduct the defense medical examination, the defense medical examiner expert should be required by this Honorable 14 Filing 134817770 L POTTER VS EMANUEL JACKSON 05-2021-CA-019085-XXXX-XX Court to maintain and agree to provide all “Elkins” information in accord with Elkins v. Syken, 672 So.2d 517 (Fla. 1996) and Rule 1.280(b)(4)(A)Gii). 12. PLAINTIFF'S OFFER _OF STIPULATED AGREEMENT: Plaintiff is agreeable to a signed stipulation or a stipulated order consistent with the foregoing allowing a Rule 1.360 physical examination by the DME date, time and place at least sixty days or more before the trial. 13. COURT ORDER IN ABSENCE OF STIPULATED AGREEMENT: In the absence of stipulation between the parties regarding the examination or agreement for entry of a stipulated order, per Rule 1.360 (a)(1)(B)(3), Fla.R.Civ.P. “the court may establish protective rulings governing such examination,” and the Court should require the Defendant to comply with the reasonable conditions outlined by Plaintiff herein above, including at a minimum requiring the examination to occur in Brevard County, Florida at least ninety days before the trial docket term, limiting the Defendant to one DME physical examination of the Plaintiff and prohibiting the DME doctor from acting as a “Surrogate Defense Attorney” and from engaging in or rendering, as the case may be, any psychological, psychiatric, character or credibility inquiry, examination, testing or opinions. 14_NO STIPULATION AS TO AUTHENTICITY OF MEDICAL RECORDS Plaintiff 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 shal] 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. See § 90.803(6), Fla. Stat. (2011); is Filing 134817770 L POTTER VS EMANUEL JACKSON 05-2021-CA-019085-XXXX-XX 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. Ist 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); and Smithson v. VMS Realty, Inc., 536 So. 2d 260 (Fla. 3d DCA 1988). 15. NO INTAKE PAPERWORK REQUIRED. Plaintiff shall not be required to fill out any forms or documents except to provide identifying information and sufficient proof of identity through a state-issued ID card. 16. TIMELY EXAMINATION REQUIRED: Should Dr. Brett A. Osborn Defendant’s retained medical witness, not begin conducting the scheduled examination by 30 minutes of the scheduled time. Plaintiff if free to leave. 17. LIMITED SCOPE OF EXAMINATION: That the examination should be limited in scope to those areas of the body which the Court determines Defendant has met its burden of proof. 18. Defendants are responsible for informing the examiner of the conditions applicable to the exam set forth herein. WHEREFORE IN ABSENCE OF STIPULATED AGREEMENT: In the absence of stipulation between the parties regarding the examination or agreement for entry of a stipulated order, per Rule 1.360 (a)(1)(B)(3), Fla.R.Civ.P. “the court may establish protective rulings governing such examination,” and the Court should require the Defendant to comply with the reasonable conditions outlined by Plaintiff herein above, including at a minimum requiring the examination to occur in Brevard County, Florida at least ninety days before the trial docket term, limiting the Defendant to one DME 16 Filing 134817770 L POTTER VS EMANUEL JACKSON 05-2021-CA-019085-XXXX-XX physical examination of the Plaintiff and prohibiting the DME doctor from acting as a “Surrogate Defense Attorney” and from engaging in or rendering, as the case may be. any psychological, psychiatric, character or credibility inquiry, examination, testing or opinion testing or opinions. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via E-mail and/or the Florida Courts ePortal to the following Sebastian C. Mejia Esq. semé @kubickideaper. com, Hans Laurenceau Laurencea a. COM Har OM; "Nuesa, Valerie VNuesa(@)ge' om; Tara B. Ratanun, idray non this the 17th day of September, 2021 GILLIN, GILLIN & LINDBAEK, P.A. Counselors for Plaintiff 222 N. Harbor City Blvd Melbourne Florida 32935 Telephone 321 729-1444 By. /s/ Erie S. Gillin, Eric S. Gillin, Esq. Florida Bar No. 168629 Primary email: ¢ ri¢@brevardjustice.com 1? Filing 134817770 L POTTER VS EMANUEL JACKSON 05-2021-CA-019085-XXXX-XX