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Filing # 144764929 E-Filed 02/28/2022 06:00:50 PM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
GENERAL CIVIL DIVISION
XIAO SHENG YUE,
Plaintiff,
vs. CASE NO: 2020 CA 001106 AN
HON. MARGARET H. SCHREIBER
CYNTHIA M FOERSTER
AND CHAPP, INC.,
Defendants.
/
PLAINTIFF’S MOTION FOR PROTECTIVE ORDER
Plaintiff Xiao Sheng Yue moves the Court for entry of an Order of protection regarding
the deposition of Defendants’ Compulsory Medical Examiner, Eric D. Kramer, M.D., pursuant to
Fla. R. Civ. P. 1.310(d), and as grounds therefor would state:
1. Less than four hours before the scheduled deposition of Compulsory Medical
Examiner Dr. Eric Kramer on February 28, 2022 at 1:30 p.m. -- which was scheduled
specifically for use at trial because Dr. Kramer was apparently unable to attend the trial
scheduled in this action -- the defense sent a copy of a letter dated February 23, 2022 from Dr.
Kramer to defense counsel containing Dr. Kramer’s review of additional diagnostic studies that
he had not previously reviewed. The diagnostic studies were conducted in 2018 and 2019 — prior
to the filing of this action. Exhibit 1.
2. Because of this untimely serving of additional opinions or observations, in
violation of this Courts Orders governing the pretrial events and the rules and case law
pertaining to CME reports, Plaintiff exercised his right under Rule 1.310(d) to file a motion for
protective order and suspended the taking of the deposition. Fla. R. Civ. P. 1.310(d)(‘Upon
demand of any party or the deponent, the taking of the deposition must be suspended for the time
necessary to make a motion for an order.”).
3. This action was filed in 2020. On or about September 20, 2021, Defendants
retained Dr. Eric Kramer to conduct a Compulsory Medical Examination (CME) under Fla. R.
Civ. P. 1.360.
4. On September 23, 2021, Dr. Kramer issued a letter to defense counsel, under the
heading “Initial Record Review.” On October 28, 2021, Dr. Kramer issueda letter to defense
counsel, under the heading “Comprehensive Neurologic Evaluation.”
5. Multiple “supplemental” reports were issued, culminating in the one dated
February 23, 2022 which was served less than four hours before the scheduled trial deposition.
6. Moreover, Plaintiff deposed Dr. Kramer on December | and 20, 2022.
7. Under Rule 1.360, the CME shall produce “‘a detailed written report of the
examiner setting out the examiner’s findings, including results of all tests made, diagnosis, and
conclusions, with similar reports of all earlier examinations of the same condition.” Further, a
CME doctor may nor render opinions not contained in the CME report is not permitted. Cascanet v. Allen, 83
So. 3d 759, 763 (Fla. 5th DCA 2011)(Rule 1.360(b) requires ““a detailed written report of the
examiner setting out the examiner's findings, including results of all tests made, diagnosis, and
conclusions, with similar reports of all earlier examinations of the same condition’ [and]
[a]llowing the IME expert to render opinions that are not contained in the report violates the
purpose and spirit of the rule.”’).
8. The provision of an updated CME report on the day of trial testimony is trial by
ambush, regardless of intent.
9. Plaintiff moves the Court for entry of an Order limiting Dr. Kramer to testifying
about what he reviewed prior to February 7, 2022. This is consistent with paragraph 14 of the
February 8, 2022 Virtual Pre-Trial Checklist and Order Controlling Trial (“Expert Opinions.
Not admissible if not expressed in deposition or in an expert report (unless no report was created
and no deposition was taken.’).
DATED this 28" day of February, 2022.
/s/ Ryan Christopher Rodems
RYAN CHRISTOPHER RODEMS, ESQUIRE
Florida Bar Number. 947652
Morgan & Morgan, P.A.
20 N. Orange Avenue, 16th Floor
Orlando, Florida 32802-4979
Telephone: (407) 420-1414
Facsimile: (407) 245-3486
Primary email: RRodems@ForThePeople.com
Secondary email: episcani@forthepeople.com;
jessicalopez@forthepeople.com
Attorneys for Plaintiff
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on February 28, 2022, I electronically filed the foregoing with
the Clerk of the Courts by using the Florida Courts e-Filing Portal which will forward a copy to:
Jorge Santeiro, Jr., Esquire, Law Offices of Santeiro & Garrison, 6300 University Parkway, Ste
101, Sarasota, FL 34240, via email at jsanteiro@fcci-group.com; ssmithS@fcci-group.com;
legalservice@fcci-group.com.
/s/ Ryan Christopher Rodems
RYAN CHRISTOPHER RODEMS, ESQUIRE
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Filing # 144764929 E-Filed 02/28/2022 06:00:50 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA GENERAL CIVIL DIVISION XIAO SHENG YUE, Plaintiff, vs. CASE NO: 2020 CA 001106 AN HON. MARGARET H. SCHREIBER CYNTHIA M FOERSTER AND CHAPP, INC., Defendants. / PLAINTIFF’S MOTION FOR PROTECTIVE ORDER Plaintiff Xiao Sheng Yue moves the Court for entry of an Order of protection regarding the deposition of Defendants’ Compulsory Medical Examiner, Eric D. Kramer, M.D., pursuant to Fla. R. Civ. P. 1.310(d), and as grounds therefor would state: 1. Less than four hours before the scheduled deposition of Compulsory Medical Examiner Dr. Eric Kramer on February 28, 2022 at 1:30 p.m. -- which was scheduled specifically for use at trial because Dr. Kramer was apparently unable to attend the trial scheduled in this action -- the defense sent a copy of a letter dated February 23, 2022 from Dr. Kramer to defense counsel containing Dr. Kramer’s review of additional diagnostic studies that he had not previously reviewed. The diagnostic studies were conducted in 2018 and 2019 — prior to the filing of this action. Exhibit 1. 2. Because of this untimely serving of additional opinions or observations, in violation of this Courts Orders governing the pretrial events and the rules and case law pertaining to CME reports, Plaintiff exercised his right under Rule 1.310(d) to file a motion for protective order and suspended the taking of the deposition. Fla. R. Civ. P. 1.310(d)(‘Upon demand of any party or the deponent, the taking of the deposition must be suspended for the time necessary to make a motion for an order.”). 3. This action was filed in 2020. On or about September 20, 2021, Defendants retained Dr. Eric Kramer to conduct a Compulsory Medical Examination (CME) under Fla. R. Civ. P. 1.360. 4. On September 23, 2021, Dr. Kramer issued a letter to defense counsel, under the heading “Initial Record Review.” On October 28, 2021, Dr. Kramer issueda letter to defense counsel, under the heading “Comprehensive Neurologic Evaluation.” 5. Multiple “supplemental” reports were issued, culminating in the one dated February 23, 2022 which was served less than four hours before the scheduled trial deposition. 6. Moreover, Plaintiff deposed Dr. Kramer on December | and 20, 2022. 7. Under Rule 1.360, the CME shall produce “‘a detailed written report of the examiner setting out the examiner’s findings, including results of all tests made, diagnosis, and conclusions, with similar reports of all earlier examinations of the same condition.” Further, a CME doctor may nor render opinions not contained in the CME report is not permitted. Cascanet v. Allen, 83 So. 3d 759, 763 (Fla. 5th DCA 2011)(Rule 1.360(b) requires ““a detailed written report of the examiner setting out the examiner's findings, including results of all tests made, diagnosis, and conclusions, with similar reports of all earlier examinations of the same condition’ [and] [a]llowing the IME expert to render opinions that are not contained in the report violates the purpose and spirit of the rule.”’). 8. The provision of an updated CME report on the day of trial testimony is trial by ambush, regardless of intent. 9. Plaintiff moves the Court for entry of an Order limiting Dr. Kramer to testifying about what he reviewed prior to February 7, 2022. This is consistent with paragraph 14 of the February 8, 2022 Virtual Pre-Trial Checklist and Order Controlling Trial (“Expert Opinions. Not admissible if not expressed in deposition or in an expert report (unless no report was created and no deposition was taken.’). DATED this 28" day of February, 2022. /s/ Ryan Christopher Rodems RYAN CHRISTOPHER RODEMS, ESQUIRE Florida Bar Number. 947652 Morgan & Morgan, P.A. 20 N. Orange Avenue, 16th Floor Orlando, Florida 32802-4979 Telephone: (407) 420-1414 Facsimile: (407) 245-3486 Primary email: RRodems@ForThePeople.com Secondary email: episcani@forthepeople.com; jessicalopez@forthepeople.com Attorneys for Plaintiff CERTIFICATE OF SERVICE I HEREBY CERTIFY that on February 28, 2022, I electronically filed the foregoing with the Clerk of the Courts by using the Florida Courts e-Filing Portal which will forward a copy to: Jorge Santeiro, Jr., Esquire, Law Offices of Santeiro & Garrison, 6300 University Parkway, Ste 101, Sarasota, FL 34240, via email at jsanteiro@fcci-group.com; ssmithS@fcci-group.com; legalservice@fcci-group.com. /s/ Ryan Christopher Rodems RYAN CHRISTOPHER RODEMS, ESQUIRE