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Filing # 145409965 E-Filed 03/09/2022 05:02:26 PM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT,
IN AND FOR OSCEOLA COUNTY, FLORIDA
XIAO SHENG YUE,
Plaintiff,
CASE NO.: 2020-CA-1106AN
v.
CYNTHIA M. FOERSTER AND
CHAPP, INC.,
Defendants.
______________________________/
DEFENDANTS MOTION TO CONTINUE TRIAL
COME NOW, Defendants, CYNTHIA M. FOERSTER and CHAPP, INC. (“Defendants”),
by and through undersigned counsel and pursuant to Rule 1.460, Fla. R. Civ. P., hereby file this
motion to continue the trial in this matter, and state:
1. This case is currently set for trial during the March 21, 2022, trial docket. The
undersigned hereby requests a continuance on the basis that despite diligent efforts and due to
circumstances outside of counsel’s control, defendant has been unable to take the video depositions
for trial of any of its medical experts, who are unavailable for trial, and thus the defendants would
be extremely prejudiced if they were required to go to trial without the benefit of any medical
expert testimony.
2. Neuroradiology expert, Dr. Geoffrey Negin. Defendants have been unable to take
the videotaped deposition for trial of their neuroradiology expert, Dr. Geoffrey Negin, because
Plaintiff’s counsel has not provided dates for said deposition despite repeated requests by the office
of the undersigned. See email chains attached hereto as Composite Exhibit “A”. The undersigned
is currently trying o re-set the video deposition of Dr. Negin.
3. Orthopedic surgery expert, Dr. Grady McBride. Defendants have been unable to
take the videotaped deposition for trial of orthopedic surgery expert, Dr. Grady McBride, because
Dr. McBride unilaterally cancelled the deposition due to the alleged non-payment of his deposition
fee by Plaintiff’s counsel. Please note that this is disputed as Plaintiff’s counsel did apparently
pay Dr. McBride but there appears to have been a bookkeeping or clerical error from Dr.
McBride’s end. See email from Dr. McBride, attached hereto as Exhibit “B”. The undersigned
is currently trying to re-set the video deposition of Dr. McBride.
4. Neurology expert, Dr. Eric Kramer. Defendants have been unable to complete the
video deposition for trial of their neurology expert, Dr. Eric Kramer, because unexpectedly and
without sufficient legal justification, Plaintiff’s counsel unilaterally terminated and left the
videotaped deposition for trial of Dr. Kramer on February 28, 2022 before it could get underway.
This deposition is the subject of Plaintiff’s motion for protective order (Filing # 144764929), which
is scheduled for hearing on May 25, 2022 Please note that the hearing date is roughly one month
after the end of the currently scheduled trial term.
5. By order dated January 4, 2022, the Court had previously granted Defendants’ ore
tenus motion to continue trial from the January 10, 2022, trial docket on the basis that non-party,
Akumin, had defied this Court’s order to show cause and failed to produce critical post-accident
brain, cervical and lumbar MRI films. See Filing # 141325186. Thereafter, Defendants filed a
motion for contempt directed to Akumin (Filing # 142185771), which was set for hearing on
February 4, 2022. See, Filing # 142523067.
6. The day before the hearing, Akumin complied and produced evidence that they
produced the correct subject films, which were physically received on February 7, 2022.
Consequently, the undersigned cancelled the following day’s hearing (Filing # 143256711) and
promptly produced the 2019 MRI films to its three medical experts and to Plaintiff’s counsel upon
their receipt.
5. Plaintiff’s counsel had already taken the discovery deposition of defendants’
neurology expert, Dr. Eric Kramer, over two days on December 1 and 20, 2021. During said
depositions, Dr. Kramer testified that his opinions were based on all the documentation provided
to him, including pre-accident MRI films and reports and post-accident MRI reports. At the time
of these depositions, Akumin had not produced the post-accident films and thus Dr. Kramer had
not been able to review them. He testified that his opinions were final subject to the receipt of
additional records. The record can be supplemented with the transcripts of Dr. Kramer’s
depositions if necessary for the Court to render a decision.
6. Following Akumin’s compliance with the subpoena and producing the post-
accident films, once they were obtained the undersigned immediately had them forwarded to Dr.
Kramer for review on February 7, 2022.
7. Dr. Kramer’s videotaped deposition for trial was scheduled on February 28, 2022.
The undersigned received a supplemental report from Dr. Kramer’s office based on his review of
these films February 23, 2022. Due to an oversight, this document was sent to Plaintiff’s counsel
the morning of the deposition—three business days later—at 9:37 a.m. Please see Exhibit “C.”
After Dr. Kramer’s reviewed the post-accident MRI films of the brain, cervical spine and lumbar
spine, his opinions did not change from those expressed in his prior reports and discovery
depositions:
• Prior opinions (from Dr. Kramer’s November 10, 2021 Summary and
conclusions—before plaintiff took his discovery deposition):
After completing the record review and completing the comprehensive
evaluation, I can state beyond a reasonable degree of medical probability
that the claimant did not sustain a neurologic injury associated with the
subject incident from 09/11/2018. The numerous issues that he capably
defined are not the outcome of a neurologic injury. It must be noted that the
subjective claim of a problem of process does not substantiate the presence
of the injury. The objective data here and the gentleman's performance were
incongruent across several spheres and planes. The examination manifested
at least several non-physiologic findings. In the setting of an incident
occurring with minor rear-end damage and no air bag deployment and a
Glasgow Coma Scale of 15 and an evaluation by first responders stating that
he was alert and oriented x 4, the symptoms that might have been associated
with that collision would be expected to resolve fully within a few weeks
but not longer than 90 days.
• Opinions subsequent to review of subject films (Supplemental Report dated
February 23, 2022 in its entirety:
I had the opportunity to review records per your cover letter dated 02/07/22.
The records included digitized images of an ultrasound of the carotids from
08/20/19, digitized images from an MRI of the lumbar spine from 10/11/18
and a cervical spine MRI from 09/27/18. There was also an MRI of the brain
from 09/27/18.
Arriving with the records was a printout of the Zoom deposition in which I
was the witness on 12/01 /21, and 12/20/21.
The images were reviewed in the order in which they came up per the
computer. The MRI of the lumbar spine showed some bulging at the 3-4
and 4-5 levels. The MRI of the brain did not show any gross abnormalities
or asymmetries. The MRI of the cervical spine showed normal spine with
some arthritic changes at multiple levels. This was associated with some
flattening of the cord.
After reviewing these images, my previously expressed opinions have not
changed. Additionally, I have had the opportunity to review my testimony.
I did not find any reason to make any corrections.
Redacted copies of the Summary and Conclusions and the Supplemental Report are
attached hereto as Composite Exhibit “D”.
8. Considering Dr. Kramer’s review of these films did not change any of his
opinions—and considering that counsel was aware of the difficulty of obtaining the films and the
fact that both Drs. Negin and McBride had already had their discovery depositions taken after they
had reviewed the films—it is unfathomable that the production of the supplemental report the
morning of the deposition could possibly have affected Plaintiff’s strategy for cross-examining Dr.
Kramer or prejudiced Plaintiff in any way. But nevertheless, as noted above, Plaintiff’s counsel
unilaterally terminated the deposition and abruptly left the Zoom link despite the undersigned’s
stated intent to proceed. The record will be supplemented with the transcript of that day’s
proceedings upon receipt.
10. Dr. Kramer’s deposition is currently scheduled for June 1, 2022—the first date it
could be coordinated with Plaintiff’s counsel and Dr. Kramer. Again, this date is well after the
presently scheduled trial period.
11. Florida Rule of Civil Procedure 1.460 governs the procedure for seeking a
continuance. It provides as follows:
A motion for continuance shall be in writing unless made at a trial and, except for
good cause shown, shall be signed by the party requesting the continuance. The
motion shall state all of the facts that the movant contends entitle the movant to a
continuance. If a continuance is sought on the ground of nonavailability of a
witness, the motion must show when it is believed the witness will be available.
Generally, a trial court has broad discretion in ruling on a motion for continuance. See Shands
Teaching Hosp. & Clinics, Inc. v. Dunn, 977 So. 2d 594, 599 (Fla. 1st DCA 2007). However, a
trial court’s discretion is not unlimited. See Fisher v. Perez, 947 So.2d 648, 653 (Fla. 3d DCA
2007) (“While a trial judge ordinarily has great discretion in ruling on matters during the course
of a trial, such rulings must comport with fairness and due process.”); Silverman v. Millner, 514
So.2d 77, 78 (Fla. 3d DCA 1987) (“Special circumstances sometimes exist ... in which the denial
of a motion for continuance creates an injustice for the movant. In these circumstances, this court's
obligation to rectify the injustice outweighs its policy of not disturbing a trial court's ruling on a
continuance.”); Shands Teaching Hosp. & Clinics, Inc. v. Dunn, 977 So.2d 594, 599 (Fla. 1st DCA
2007) (“[T]here are indeed cases in which the appellate court will have no alternative but to
reverse, because the injustice caused by the denial of the motion outweighs the judicial policy of
deferring to the trial judge.”)
12. Appellate courts consider several factors when reviewing the denial of a motion for
a continuance including: “whether the denial of the motion results in the movant suffering an
injustice; whether the underlying cause for the motion was unforeseen; whether the motion is based
on dilatory tactics; and whether, assuming the motion was granted, the opposing party would be
prejudiced.” Daher v. Pacha NYC, 194 So. 3d 456, 459 (Fla. 3d DCA 2016) (citing Silverman,514
So.2d at 78–79 ; Yaris v. Hartley,128 So.3d 825, 828 (Fla. 4th DCA 2013) ; Riley v. Riley,14 So.3d
1284, 1287 (Fla. 2d DCA 2009) ; Myers v. Siegel,920 So.2d 1241, 1242 (Fla. 5th DCA 2006).
12. Without the testimony of any medical experts, the defendants would be severely
and insurmountably prejudiced. This is a case of medical causation and damages and thus,
proceeding to trial without any expert medical testimony would leave defendants without any
defenses to Plaintiff’s claims whatsoever.
13. The undersigned has conferred with Manuel Stefan, Esq., who represents Plaintiff
in this matter, who indicated that under the circumstances he does oppose the requested
continuance.
WHEREFORE, Defendants, CYNTHIA M. FOERSTER and CHAPP, INC., respectfully
move this Court to enter an order continuing the trial of this matter, adjusting any trial and case
management deadlines accordingly and any other further relief as is just and proper.
CONSENT OF CYNTHIA M. FOERSTER
I, CYNTHIA M. FOERSTER, hereby consent to the continuance of the trial of this case.
fA |
Dated this ~\day of March, 2022.
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ofCHAPP, INC, hereby consenttothe continuance of
the trial of this case.
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Dated this “| = day of March, 2022.
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Signature oo
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Title
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that, on this 9th day of March, 2022, I electronically filed the
foregoing with the Clerk of the Court via the Florida Courts’ e-Filing Portal, pursuant to and in
compliance with Rule 2.516, Florida Rules of Judicial Administration, which completes service
by furnishing a true and correct copy of the foregoing via electronic mail to all counsel of record.
LAW OFFICES OF SANTEIRO & GARRISON
/s/ Jorge Santeiro, Jr.
Jorge Santeiro, Jr.
FBN 66230
6300 University Parkway
Suite 101
Sarasota, FL 34240
Tel: (800) 226-3224 Ext. 1021
Primary: jsanteiro@fcci-group.com
Secondary: ssmith5@fcci-group.com
Secondary: legalservice@fcci-group.com
Attorney for Defendants
Preview
Filing # 145409965 E-Filed 03/09/2022 05:02:26 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR OSCEOLA COUNTY, FLORIDA XIAO SHENG YUE, Plaintiff, CASE NO.: 2020-CA-1106AN v. CYNTHIA M. FOERSTER AND CHAPP, INC., Defendants. ______________________________/ DEFENDANTS MOTION TO CONTINUE TRIAL COME NOW, Defendants, CYNTHIA M. FOERSTER and CHAPP, INC. (“Defendants”), by and through undersigned counsel and pursuant to Rule 1.460, Fla. R. Civ. P., hereby file this motion to continue the trial in this matter, and state: 1. This case is currently set for trial during the March 21, 2022, trial docket. The undersigned hereby requests a continuance on the basis that despite diligent efforts and due to circumstances outside of counsel’s control, defendant has been unable to take the video depositions for trial of any of its medical experts, who are unavailable for trial, and thus the defendants would be extremely prejudiced if they were required to go to trial without the benefit of any medical expert testimony. 2. Neuroradiology expert, Dr. Geoffrey Negin. Defendants have been unable to take the videotaped deposition for trial of their neuroradiology expert, Dr. Geoffrey Negin, because Plaintiff’s counsel has not provided dates for said deposition despite repeated requests by the office of the undersigned. See email chains attached hereto as Composite Exhibit “A”. The undersigned is currently trying o re-set the video deposition of Dr. Negin. 3. Orthopedic surgery expert, Dr. Grady McBride. Defendants have been unable to take the videotaped deposition for trial of orthopedic surgery expert, Dr. Grady McBride, because Dr. McBride unilaterally cancelled the deposition due to the alleged non-payment of his deposition fee by Plaintiff’s counsel. Please note that this is disputed as Plaintiff’s counsel did apparently pay Dr. McBride but there appears to have been a bookkeeping or clerical error from Dr. McBride’s end. See email from Dr. McBride, attached hereto as Exhibit “B”. The undersigned is currently trying to re-set the video deposition of Dr. McBride. 4. Neurology expert, Dr. Eric Kramer. Defendants have been unable to complete the video deposition for trial of their neurology expert, Dr. Eric Kramer, because unexpectedly and without sufficient legal justification, Plaintiff’s counsel unilaterally terminated and left the videotaped deposition for trial of Dr. Kramer on February 28, 2022 before it could get underway. This deposition is the subject of Plaintiff’s motion for protective order (Filing # 144764929), which is scheduled for hearing on May 25, 2022 Please note that the hearing date is roughly one month after the end of the currently scheduled trial term. 5. By order dated January 4, 2022, the Court had previously granted Defendants’ ore tenus motion to continue trial from the January 10, 2022, trial docket on the basis that non-party, Akumin, had defied this Court’s order to show cause and failed to produce critical post-accident brain, cervical and lumbar MRI films. See Filing # 141325186. Thereafter, Defendants filed a motion for contempt directed to Akumin (Filing # 142185771), which was set for hearing on February 4, 2022. See, Filing # 142523067. 6. The day before the hearing, Akumin complied and produced evidence that they produced the correct subject films, which were physically received on February 7, 2022. Consequently, the undersigned cancelled the following day’s hearing (Filing # 143256711) and promptly produced the 2019 MRI films to its three medical experts and to Plaintiff’s counsel upon their receipt. 5. Plaintiff’s counsel had already taken the discovery deposition of defendants’ neurology expert, Dr. Eric Kramer, over two days on December 1 and 20, 2021. During said depositions, Dr. Kramer testified that his opinions were based on all the documentation provided to him, including pre-accident MRI films and reports and post-accident MRI reports. At the time of these depositions, Akumin had not produced the post-accident films and thus Dr. Kramer had not been able to review them. He testified that his opinions were final subject to the receipt of additional records. The record can be supplemented with the transcripts of Dr. Kramer’s depositions if necessary for the Court to render a decision. 6. Following Akumin’s compliance with the subpoena and producing the post- accident films, once they were obtained the undersigned immediately had them forwarded to Dr. Kramer for review on February 7, 2022. 7. Dr. Kramer’s videotaped deposition for trial was scheduled on February 28, 2022. The undersigned received a supplemental report from Dr. Kramer’s office based on his review of these films February 23, 2022. Due to an oversight, this document was sent to Plaintiff’s counsel the morning of the deposition—three business days later—at 9:37 a.m. Please see Exhibit “C.” After Dr. Kramer’s reviewed the post-accident MRI films of the brain, cervical spine and lumbar spine, his opinions did not change from those expressed in his prior reports and discovery depositions: • Prior opinions (from Dr. Kramer’s November 10, 2021 Summary and conclusions—before plaintiff took his discovery deposition): After completing the record review and completing the comprehensive evaluation, I can state beyond a reasonable degree of medical probability that the claimant did not sustain a neurologic injury associated with the subject incident from 09/11/2018. The numerous issues that he capably defined are not the outcome of a neurologic injury. It must be noted that the subjective claim of a problem of process does not substantiate the presence of the injury. The objective data here and the gentleman's performance were incongruent across several spheres and planes. The examination manifested at least several non-physiologic findings. In the setting of an incident occurring with minor rear-end damage and no air bag deployment and a Glasgow Coma Scale of 15 and an evaluation by first responders stating that he was alert and oriented x 4, the symptoms that might have been associated with that collision would be expected to resolve fully within a few weeks but not longer than 90 days. • Opinions subsequent to review of subject films (Supplemental Report dated February 23, 2022 in its entirety: I had the opportunity to review records per your cover letter dated 02/07/22. The records included digitized images of an ultrasound of the carotids from 08/20/19, digitized images from an MRI of the lumbar spine from 10/11/18 and a cervical spine MRI from 09/27/18. There was also an MRI of the brain from 09/27/18. Arriving with the records was a printout of the Zoom deposition in which I was the witness on 12/01 /21, and 12/20/21. The images were reviewed in the order in which they came up per the computer. The MRI of the lumbar spine showed some bulging at the 3-4 and 4-5 levels. The MRI of the brain did not show any gross abnormalities or asymmetries. The MRI of the cervical spine showed normal spine with some arthritic changes at multiple levels. This was associated with some flattening of the cord. After reviewing these images, my previously expressed opinions have not changed. Additionally, I have had the opportunity to review my testimony. I did not find any reason to make any corrections. Redacted copies of the Summary and Conclusions and the Supplemental Report are attached hereto as Composite Exhibit “D”. 8. Considering Dr. Kramer’s review of these films did not change any of his opinions—and considering that counsel was aware of the difficulty of obtaining the films and the fact that both Drs. Negin and McBride had already had their discovery depositions taken after they had reviewed the films—it is unfathomable that the production of the supplemental report the morning of the deposition could possibly have affected Plaintiff’s strategy for cross-examining Dr. Kramer or prejudiced Plaintiff in any way. But nevertheless, as noted above, Plaintiff’s counsel unilaterally terminated the deposition and abruptly left the Zoom link despite the undersigned’s stated intent to proceed. The record will be supplemented with the transcript of that day’s proceedings upon receipt. 10. Dr. Kramer’s deposition is currently scheduled for June 1, 2022—the first date it could be coordinated with Plaintiff’s counsel and Dr. Kramer. Again, this date is well after the presently scheduled trial period. 11. Florida Rule of Civil Procedure 1.460 governs the procedure for seeking a continuance. It provides as follows: A motion for continuance shall be in writing unless made at a trial and, except for good cause shown, shall be signed by the party requesting the continuance. The motion shall state all of the facts that the movant contends entitle the movant to a continuance. If a continuance is sought on the ground of nonavailability of a witness, the motion must show when it is believed the witness will be available. Generally, a trial court has broad discretion in ruling on a motion for continuance. See Shands Teaching Hosp. & Clinics, Inc. v. Dunn, 977 So. 2d 594, 599 (Fla. 1st DCA 2007). However, a trial court’s discretion is not unlimited. See Fisher v. Perez, 947 So.2d 648, 653 (Fla. 3d DCA 2007) (“While a trial judge ordinarily has great discretion in ruling on matters during the course of a trial, such rulings must comport with fairness and due process.”); Silverman v. Millner, 514 So.2d 77, 78 (Fla. 3d DCA 1987) (“Special circumstances sometimes exist ... in which the denial of a motion for continuance creates an injustice for the movant. In these circumstances, this court's obligation to rectify the injustice outweighs its policy of not disturbing a trial court's ruling on a continuance.”); Shands Teaching Hosp. & Clinics, Inc. v. Dunn, 977 So.2d 594, 599 (Fla. 1st DCA 2007) (“[T]here are indeed cases in which the appellate court will have no alternative but to reverse, because the injustice caused by the denial of the motion outweighs the judicial policy of deferring to the trial judge.”) 12. Appellate courts consider several factors when reviewing the denial of a motion for a continuance including: “whether the denial of the motion results in the movant suffering an injustice; whether the underlying cause for the motion was unforeseen; whether the motion is based on dilatory tactics; and whether, assuming the motion was granted, the opposing party would be prejudiced.” Daher v. Pacha NYC, 194 So. 3d 456, 459 (Fla. 3d DCA 2016) (citing Silverman,514 So.2d at 78–79 ; Yaris v. Hartley,128 So.3d 825, 828 (Fla. 4th DCA 2013) ; Riley v. Riley,14 So.3d 1284, 1287 (Fla. 2d DCA 2009) ; Myers v. Siegel,920 So.2d 1241, 1242 (Fla. 5th DCA 2006). 12. Without the testimony of any medical experts, the defendants would be severely and insurmountably prejudiced. This is a case of medical causation and damages and thus, proceeding to trial without any expert medical testimony would leave defendants without any defenses to Plaintiff’s claims whatsoever. 13. The undersigned has conferred with Manuel Stefan, Esq., who represents Plaintiff in this matter, who indicated that under the circumstances he does oppose the requested continuance. WHEREFORE, Defendants, CYNTHIA M. FOERSTER and CHAPP, INC., respectfully move this Court to enter an order continuing the trial of this matter, adjusting any trial and case management deadlines accordingly and any other further relief as is just and proper. CONSENT OF CYNTHIA M. FOERSTER I, CYNTHIA M. FOERSTER, hereby consent to the continuance of the trial of this case. fA | Dated this ~\day of March, 2022. j x dig AIN_Y. { . C_uacltura VV hey a ihe Signature . Va .}) (\ CONSENT OF CHAPP, INC. L( Laen ( Seip ff — hire —— ofCHAPP, INC, hereby consenttothe continuance of the trial of this case. 4 uh Dated this “| = day of March, 2022. iN KlLX ¥WhV;{ aN. — Nee+O Signature oo - LOH C rete: Ne Namie bees Bel esidean Title CERTIFICATE OF SERVICE I HEREBY CERTIFY that, on this 9th day of March, 2022, I electronically filed the foregoing with the Clerk of the Court via the Florida Courts’ e-Filing Portal, pursuant to and in compliance with Rule 2.516, Florida Rules of Judicial Administration, which completes service by furnishing a true and correct copy of the foregoing via electronic mail to all counsel of record. LAW OFFICES OF SANTEIRO & GARRISON /s/ Jorge Santeiro, Jr. Jorge Santeiro, Jr. FBN 66230 6300 University Parkway Suite 101 Sarasota, FL 34240 Tel: (800) 226-3224 Ext. 1021 Primary: jsanteiro@fcci-group.com Secondary: ssmith5@fcci-group.com Secondary: legalservice@fcci-group.com Attorney for Defendants