EFTA00723770.pdf

Page 1 IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT R4 AND FOR PALM BEACH COUNTY. FLORIDA CASE No.5O200SCA0373I9XXXXmB AB BB and Plamnff, Defendants. RULING REGARDING PLAINTIFFS MOTION FOR PROTECTIVE ORDER REGARDING DEFENDANTS REQUEST FOR A MEDICAL EXAMINATION AND DEFENDANT'S INCORPORATED MOTION PSYCHOLOGICAL MEDICAL EXAMINATION EXCERPT OF HEARING BEFORE THE HONORABLE DONALD NAME Tuesday, January 26, 2010 Palm Beach Comity Courthouse Wei Palm Beach, Florida 33401 9:22 • 9:37 a.m. Ripened By. Cynthia Hopkins, RPR, FPR Notary Public, State of Florida Prose Court Reponing lob No: 1252 Page 3 1 EXCERPT OF PROCEEDINGS 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MB COURT: Well, here's the way I look at it First of all I believe that I am compelled to follow the Fourth District Court of Appeal's decision in Maguire that is dated December 23, 2009, approximately one month prior to today's hearing. So, the motion is brought as Defendant's — let's see. It's Plaintiffs Motion for Protective Order, so I am going giant the motion for protective order. I am going to specifically find that the doctor's affidavit, while I don't find it to not be credible, I do fed that since he will be there and he will be visualizing the Plaintiff or Plaintiffs who he sees, and he will, himself, be eyeballing these people not only during their examinations from the standpoint of history, but also he has every right if he wishes to monitor them while they are being tested so as to determine whatever he needs to determine during the testing process. So as far as the Court is concerned, he will have that opportunity during a six-hour 1 APPEARANCES: 2 On behalf of the Plaintiff. 3 4 SPENCER T. KUViN, ESQUIRE K VIN 5 6 Phone 7 8 On behalf of the Defendants: 9 MICHAEL .1. PIKE, ESQUIRE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 2 & COLEMAN, iI.P Page 4 1 period, a very lengthy period and one which 2 this Court is well aware is somewhat 3 extraordinary. But this is not a 10 or 15 4 minute typical CME examination, and a 10 or 15 5 minute typical history taking process. This is 6 much longer. 7 And under those circumstances this Doctor will be well indoctrinated to each Plaintiff 9 relative to anything that may have to be 10 eyeballed from his vantage point. And during 13. that period of time I think that he will have a 12 great opportunity to do that, and therefore he 13 does have the substantial equivalent of the 3.4 videotape itself since he will be there and has 1 S every opportunity to be there during all 16 testing. 17 Sometimes I understand these doctors allow 18 their assistants to administer the test, but he 19 has every right to administer the tests if he 20 wants to and view these folks as much as he 21 wants to during the period of time that this 22 six-hour examination is going to take. 23 So, until and unless the Fourth District 24 Court of Appeal suggests some alternative 25 method, I don't believe that the decision of 1 (Pages 1 to 4) PROSE COURT REPORTING AGENCY, INC. Electronically signed by cynthia hopkIns (601a) 13476138-8969-4584-84474,51808873ecd EFTA00723770 Page 5 1 this Court strays from the holding of that case 2 as well as the McGarrali and that, in fact, here 3 because of the significant length of the CME's, 4 that in fact, this Doctor would have even a 5 better ability and lengthier time period in 6 order to observe each of the Plaintiffs whom he 7 has seen. 8 So the motion is granted again with the 9 same caveat as McGarrah and Maguire have held 10 and that is these videos and transcripts will 11 be discoverable if the Plaintiffs seek to use 12 the materials at trial. 13 Thank you, Gentlemen, for your 14 presentation. I wish you a very good rest of 15 the week. 16 MR. PIKE: Judge, may I ask for one 17 clarification on that? 18 THE COURT: Yes. 19 MR. PIKE: In the other cases — I don't 20 think Mr. Kuvin has an objection to this. In 21 the other cases we had a video feed into 22 another room for Plaintiff's counsel as well as 23 Defense. 24 MR. KUVIN: I don't need it 25 MR. PIKE: May I watch the CME from 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 7 1 request as well. 2 MR. PUCE: All right. Thank you, Judge. 3 MR. KUVIN: Thank you for taking the 4 Court's time. Judge, the last issue that we 5 did have, though, and we can address it at 6 another time if the Court requests are two 7 separate detailed questionnaires that the 8 Doctor wants filled out. If you don't have time this morning, we can come back. THE COURT: Thank you. I appreciate that. MR. KUVIN: Okay. THE COURT: Have a good day. MR. PIKE: Thank you, Judge. (The hearing was concluded.) Page 6 1 another room since it would not be a physical 2 presence? 3 MR. KUVIN: I would have a strenuous 4 objection to that because now you're violating 5 what I believe is the tantamount pretense of 6 the Boyle's (phonetic) decision referring to 7 the defense attorney to attend a CME. I do not 8 want a video feed. I am not going to request a 9 video feed. I want just an empty camera in the 10 room recording what occurs. 11 THE COURT: Well, again, in, in the 12 footnote it says we have some concern that 13 there are valid reasons why Defendant should 14 not, and for the record the second DCA 15 italicized and emphasized the word "not," be 16 able to obtain a substantial equivalent of a 17 videotape of a CME namely that allowing a 17 18 Defendant to view any such videotapes would be 18 19 like giving them unfettered attendance at the 19 20 CME. And so, unless there is agreement of 20 21 counsel, which there is not -- 21 22 MR. PIKE: Okay. 22 23 THE COURT: Again, until an appellate 23 24 court comes out that would be contrary to that 24 25searcw_elon, this CourtisiLLn to deny that 1 2 3 4 5 6 7 8 10 11 12 13 14 15 16 25 Page 8 CERTIFICATE STATE OF FLORIDA COUNTY OF PALM BEACH I, Cynthia Hopkins, Registered Professional Reporter and Florida Professional Reporter, State of Florida at large, certify that I was authorized to and did stenographically report the foregoing excerpt of proceedings and that the transcript is a true and complete record of my stenographic notes. Dated this 27th day of January, 20010. Job #1252 2 (Pages 5 to 8) PROSE COURT REPORTING AGENCY, INC. Electronically signed by cynthia hopkins (601 134751 as.c96945844d473/451d0aa73ecd EFTA00723771