Preview
Filing # 134079062 E-Filed 09/07/2021 08:00:25 AM
IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA.
JOSE YSMAEL PACHECO CASTILLO,
Plaintiff
Vv.
UDR OKEEHEELEE, LLC, CIVIL DIVISION
Defendant. CASE NO.:
502020CA013988XXXXMB
/
PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION TO BE
NOTIFIED OF ELECTIVE SURGERIES
Plaintiff, JOSE YSMAEL PACHECO CASTILLO, submits the following response in
opposition to Defendant, UDR OKEEHEELEE, LLC’s Motion to be Notified of Elective Surgery
and states as follows:
1. Plaintiff, JOSE YSMAEL PACHECO CASTILLO, was injured in a motor vehicle
accident.
2. Defendant, UDR OKEEHEELEE LLC, has moved for a minimum of a Thirty (30) dav
delay from the date Defendant is notified of a surgery until Plaintiff can undergo any such
procedure. Defendant further seeks the opportunity during the minimum Thirty (30) day delay to
obtain a physical examination/MRI scan or like medical examination. Plaintiff opposes the motion.
because: 1) it is a purposeful delay tactic by Defendant which is unreasonable and unnecessary
when Defendant can coordinate an examination at any time; 2) it infringes on the Plaintiffs right
of privacy under the Florida Constitution; 3) it invades his right to have timely medical treatment;
and 4) it subjects Plaintiff to a state of prolonged pain (including suffering) for a baseless reason.
CHEN. DAIAARCACUAAIINTY Cl INGEDU ARDIIV7ZA FL EDIT naIN7INNAA NA.AN-O ANA
Pm. PAL DLA VUUINE TT, PL, vUOL I mDnueey, ULLIAN, voruriZue! uu.uu.2y mi502020CA013988XXXXMB
3. In Weaver v. Myers, 229 So. 3d 1118, (Fla. 2017), the Florida Supreme Court construed
the right to privacy under the Florida Constitution. Weaver dealt with the 2013 amendments to
Chapter 76, Florida Statutes, requiring a medical malpractice claimant to consent to secret ex parte
interviews of his or her treating healthcare providers by potential defendants, insurers, expert
witnesses, attorneys, and support staff.
4. Article I of the Florida Constitution contains a twenty-seven section Declaration of Rights.
Section 23 provides:
Every natural person has the right to be let alone and free from governmental
intrusion into the person’s private life except as otherwise provided herein. This
section shall not be construed to limit the public’s right of access to public records
and meetings as provided by law.
5. In Weaver, the Florida Supreme Court “explained that the right to privacy in the Florida
Constitution is broader, more fundamental, and more highly guarded than any federal counterpart.”
According to the court, “privacy .. . is included among our most cherished rights such as speech,
religion, to be free from searches and seizures without a warrant or permissible exception, and the
right to due process.” “[A]ny law that implicates the fundamental right of privacy, regardless of
the activity, is subject to strict scrutiny and, therefore, presumptively unconstitutional.” The
supreme court held that the plaintiff in Weaver did not waive the right to privacy by filing a medical
malpractice wrongful death action.
6. Fila. R. Civ. P. 1.360(a)(1) provides, “A party may request any other party to submit to...
examination by a qualified expert when the condition that is the subject of the requested
examination is in controversy.” Wade v. Wade, 124 So. 3d 369, 376 (Fla. 3d DCA 2013),
recognized that mental or physical examinations under this rule “infringe on the subject party’s
privacy rights.” The Defendant is seeking an order that is intrusive and beyond the scope of 1.360.502020CA013988XXXXMB
Further Defendant if it wants to examine the Plaintiff can do so, but yet Defendant is strategically
trying to wait.
7. Prince v. Mallari, 36 So. 3d 128 (Fla. 5th DCA 2010), held that neither defense counsel
nor a defense videographer may attend a compulsory physical examination of the plaintiff, under
Fla, R. Civ. P. 1.360, because “[a] plaintiff retains a right to privacy.”
8. Vega v. CSCS International, N.V., 795 So, 2d 164 (Fla. 3d DCA 2001), which defendant
cites in support of its motion, is inapplicable. The court stated, “An appropriate request for an
independent medical examination would have imposed a duty on [the plaintiff] to postpone his
surgery and given the trial court authority to impose sanctions for ignoring the request.” The court
did not hold the defendant was entitled to notice of surgery. If Defendant wants to examine Plaintiff
it can file a proper request for examination, but it cannot compel Plaintiff to provide notice of
surgery.
9. A requirement to provide notice of surgery would infringe on Plaintiff's right to autonomy
over his body and his medical treatment. Unless Defendant, UDR OKEEHEELEE, LLC, has
already requested an examination, Plaintiff should not have to delay surgery in order to provide
Defendant with notice.
10. The court in Prince vy. Mallari, supra, explained:
In a compulsory medical examination, a plaintiff is placed in the awkward position
of being physically examined by someone not of his or her choosing, who has no
interest in the Plaintiff's a -being and not for medical ‘treatment. Fi physician
perioimng a CME [compulsory meuicat eX 10m] “as essentially an expert
witness for the party requesting the examination; consequently, the parties’
relationship is clearly adversarial.”
Id. at 131-132.
11. A plaintiff under the stress of contemplated surgery should not be put to the added burden
of providing notice to their legal adversary so it may delay the surgery to subject the plaintiff to502020CA013988XXXXMB
an examination by someone who is beholding to the adversary, who is not involved in the
plaintiff’s treatment, and who has no interest in the plaintiff's welfare.
12. Furthermore, Defendant, UDR OKEEHEELEE, LLC, does not attempt to define “elective
surgery.” Is it anything other than life saving surgery? Is surgery elective if it is designed to
alleviate pain, suffering, and disability? If so, should it be delayed to accommodate the
Defendant?
13. Attached are orders from circuit courts across the state denying motions similar to
Defendant, UDR OKEEHEELEE, LLC’s. Exhibit A.
Wherefore, Plaintiff, JOSE YSMAEL PACHECO CASTILLO, requests the court to deny
Defendant, UDR OKEEHEELEE, LLC’s motion to be notified of elective surgery.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was electronically
submitted on this 7 day of September, 2021, to: Eric L. Reichenberger, Esq., Marshall,
Dennehey, Warner, Coleman & Goggin, 2400 East Commercial Blvd., 11th Floor, Fort
Lauderdale, FL 33308 (ELReichenberger@mdweg.com ; TCCarter@MDWCG.com
RUBENSTEIN LAW, P.A.
Attorneys for Plaintiff
9130 S. Dadeland Blvd, PH
Miami, FL 33156
Tel: (305) 661-6000
Fax: (305) 670-7555
: im@rabensteiniaw.
jmolano@rubensteinlaw.com
eservice@rubensteinlaw.com
By: _/s/ R. Timothy Vannatta
R. Timothy Vannatta
Florida Bar No.: 0055890IN THE CIRCUIT COURT OF THE 17TH
JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA
CASE NO.: CACE-16-017856 (21)
RYAN LIPNER,
Plaintiff,
Vv.
FIRST TRANSIT, INC., AND VONNELL
EVANS,
Dafandante
vorcnuains.
/
ORDER ON DEFENDANT'S MOTION TO BE NOTIFIED OF ELECTIVE SURGERIES
THIS CAUSE having come before the Court on Defendant's Motion to be Notified
of Elective Surgeries and the Court having heard argument of counsel, and being
otherwise advised in the Premises, it is hereupon:
ORDERED AND ADJUDGED that said Motion be, and the same is hereby
X\
oe
as
DONE and ORDERED in Chambers at Broward County, Floyiga. tial fa of
, 2017.
FEB 23 2017
BARBARA MCCARTHY A TRUE Copy
CIRCUIT COURT JUDGE
Copies furnished to: i
Lonni D. Tessler, Esq., Cole, Scott & Kissane, P.A., Lakeside Office Center, Suite 500, 600 North Pine Island Road,
Plantation, Florida 33324, lonni.tessler@csklegal.com
Yeemee Chan, Esq,, Steinger, Iscoe & Greene, P.A., 2400 E. Commercial Blvd., Suite 900, Fort Lauderdale, FL
33308, ychan@injurylawyers.com,ganselmo@injurylawyers.comIN THE CIRCUIT COURT OF THE
17TH JUDICIAL CIRCUIT IN AND
FOR BROWARD COUNTY, FLORIDA
SE NO: CACE 14-007628 (14)
JOHN E. RICHARDS,
Plaintiff,
vs.
JOSEPH D. STEPHENS and
ELECTRIC INSURANCE COMPANY,
a foreign corporation authorized to do
and doing business in the State of Florida,
Defendants.
!
ORDER ON DEFENDANT'S MOTION TO BE NOTIFIED OF ELECTIVE ERIES
THIS CAUSE having come before this Honorable Court on November 12 , 2014, on
defendant, ELECTRIC INSURANCE COMPANY'S, Motion to be Notified of Elective
Surmariac and the Court having raviawad tha mnatinn haard armimant af anineal and
Venger, Gr We SOU ony Rone Une ENUUGH, HUGG GFQUlons Ul COUNOGT, GIG
being otherwise fully advised in the premises, it is -
ORDERED AND ADJUDGED that Defendant, ELECTRIC INSURANCE
COMPANY'S, Motion to be Notified of Elective Surgeries, be and the same is hereby
Denied.
DONE AND ORDERED in Chambers at, Fort Lauderdale, Broward County, Florida,
Cc.
this day of November, 2014. *Q5.
cai =i
CARLOS AUGUSTO RODRIGUEZ,CIREWYT JUDSE
Copies furnished: tare 4
ey
FRED L. FULMER, ESQUIRE - fifulmerlaw@aol.com
ERIC BERGER, ESQUIRE - Service@elblaw.net,
GARY F. BAUMANN, ESQUIRE - gbaumann@baumannlegal.com(N THE CIRCUIT COURT OF THE SEVENTEENTH
JUDICIAL CIRCUIT, IN AND FOR BROWARD
COUNTY, FLORIDA
\ CASENO.:_ CACE 12- O2178)
Whreeier
: Plaintiff,
ORDER ON
Kr. d.. av Adame KA nL
vs. t
25 Sant oSpetendant
lective Surgery
THIS CAUSE was considered by the Court on the following Motion(s) _toiee
Notified at Elective Guraecs 7
ee TT T
HEARING was held on_Nlavembee 21, 2a\7
THE COURT having considered the grounds for the Motion, taken testimony, heard argument and
considered the applicable law, itis,
ORDERED as follows:
temed ordhout oceiudice .
DONE AND ORDERED ON sla Nee ae) he ¢ 3 \, e art Bit Fort a
Broward County, Florida. DWE LL La
“Wisstoed
Copies furnished: oe Open Court iF “cakcuit HEE
CO By Mait Mavdin gd Bid wil\
(] By E-mail/Efiling Portal
' BCICA 118 (Rev 07/17)IN THE CIRCUIT COURT OFTHE / 7.
RICHARD THampson JUDICIAL CIRCUIT, INAND FOR Born sae
efx, Thy COUNTY, FLORIDA CEONERY
Case Nox CACE /9- 12031 (03 )
Y, )
ae ).
STATE FARM )
; )
ORDER ©
THIS CAUSE having come on to be heard on a) fl, ; Defendant's/Piaintiiis .
Moto FOE PRESERVATION OF PLAINTIFFS Booy (eVDENce)
and the Court having heard argument of counsel, and being otherwise advised
in the Premises, it is hereupon,
ORDERED AND ADJUDGED that said Motion be, and the same is hereby
diasel)
(} 7
DONE AND ORDERED in Chambers, at a+. ldudrate,, forauind Cluwhy F, Me
this, / day ot Athy, oof.
Preview
Filing # 134079062 E-Filed 09/07/2021 08:00:25 AM IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA. JOSE YSMAEL PACHECO CASTILLO, Plaintiff Vv. UDR OKEEHEELEE, LLC, CIVIL DIVISION Defendant. CASE NO.: 502020CA013988XXXXMB / PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION TO BE NOTIFIED OF ELECTIVE SURGERIES Plaintiff, JOSE YSMAEL PACHECO CASTILLO, submits the following response in opposition to Defendant, UDR OKEEHEELEE, LLC’s Motion to be Notified of Elective Surgery and states as follows: 1. Plaintiff, JOSE YSMAEL PACHECO CASTILLO, was injured in a motor vehicle accident. 2. Defendant, UDR OKEEHEELEE LLC, has moved for a minimum of a Thirty (30) dav delay from the date Defendant is notified of a surgery until Plaintiff can undergo any such procedure. Defendant further seeks the opportunity during the minimum Thirty (30) day delay to obtain a physical examination/MRI scan or like medical examination. Plaintiff opposes the motion. because: 1) it is a purposeful delay tactic by Defendant which is unreasonable and unnecessary when Defendant can coordinate an examination at any time; 2) it infringes on the Plaintiffs right of privacy under the Florida Constitution; 3) it invades his right to have timely medical treatment; and 4) it subjects Plaintiff to a state of prolonged pain (including suffering) for a baseless reason. CHEN. DAIAARCACUAAIINTY Cl INGEDU ARDIIV7ZA FL EDIT naIN7INNAA NA.AN-O ANA Pm. PAL DLA VUUINE TT, PL, vUOL I mDnueey, ULLIAN, voruriZue! uu.uu.2y mi502020CA013988XXXXMB 3. In Weaver v. Myers, 229 So. 3d 1118, (Fla. 2017), the Florida Supreme Court construed the right to privacy under the Florida Constitution. Weaver dealt with the 2013 amendments to Chapter 76, Florida Statutes, requiring a medical malpractice claimant to consent to secret ex parte interviews of his or her treating healthcare providers by potential defendants, insurers, expert witnesses, attorneys, and support staff. 4. Article I of the Florida Constitution contains a twenty-seven section Declaration of Rights. Section 23 provides: Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law. 5. In Weaver, the Florida Supreme Court “explained that the right to privacy in the Florida Constitution is broader, more fundamental, and more highly guarded than any federal counterpart.” According to the court, “privacy .. . is included among our most cherished rights such as speech, religion, to be free from searches and seizures without a warrant or permissible exception, and the right to due process.” “[A]ny law that implicates the fundamental right of privacy, regardless of the activity, is subject to strict scrutiny and, therefore, presumptively unconstitutional.” The supreme court held that the plaintiff in Weaver did not waive the right to privacy by filing a medical malpractice wrongful death action. 6. Fila. R. Civ. P. 1.360(a)(1) provides, “A party may request any other party to submit to... examination by a qualified expert when the condition that is the subject of the requested examination is in controversy.” Wade v. Wade, 124 So. 3d 369, 376 (Fla. 3d DCA 2013), recognized that mental or physical examinations under this rule “infringe on the subject party’s privacy rights.” The Defendant is seeking an order that is intrusive and beyond the scope of 1.360.502020CA013988XXXXMB Further Defendant if it wants to examine the Plaintiff can do so, but yet Defendant is strategically trying to wait. 7. Prince v. Mallari, 36 So. 3d 128 (Fla. 5th DCA 2010), held that neither defense counsel nor a defense videographer may attend a compulsory physical examination of the plaintiff, under Fla, R. Civ. P. 1.360, because “[a] plaintiff retains a right to privacy.” 8. Vega v. CSCS International, N.V., 795 So, 2d 164 (Fla. 3d DCA 2001), which defendant cites in support of its motion, is inapplicable. The court stated, “An appropriate request for an independent medical examination would have imposed a duty on [the plaintiff] to postpone his surgery and given the trial court authority to impose sanctions for ignoring the request.” The court did not hold the defendant was entitled to notice of surgery. If Defendant wants to examine Plaintiff it can file a proper request for examination, but it cannot compel Plaintiff to provide notice of surgery. 9. A requirement to provide notice of surgery would infringe on Plaintiff's right to autonomy over his body and his medical treatment. Unless Defendant, UDR OKEEHEELEE, LLC, has already requested an examination, Plaintiff should not have to delay surgery in order to provide Defendant with notice. 10. The court in Prince vy. Mallari, supra, explained: In a compulsory medical examination, a plaintiff is placed in the awkward position of being physically examined by someone not of his or her choosing, who has no interest in the Plaintiff's a -being and not for medical ‘treatment. Fi physician perioimng a CME [compulsory meuicat eX 10m] “as essentially an expert witness for the party requesting the examination; consequently, the parties’ relationship is clearly adversarial.” Id. at 131-132. 11. A plaintiff under the stress of contemplated surgery should not be put to the added burden of providing notice to their legal adversary so it may delay the surgery to subject the plaintiff to502020CA013988XXXXMB an examination by someone who is beholding to the adversary, who is not involved in the plaintiff’s treatment, and who has no interest in the plaintiff's welfare. 12. Furthermore, Defendant, UDR OKEEHEELEE, LLC, does not attempt to define “elective surgery.” Is it anything other than life saving surgery? Is surgery elective if it is designed to alleviate pain, suffering, and disability? If so, should it be delayed to accommodate the Defendant? 13. Attached are orders from circuit courts across the state denying motions similar to Defendant, UDR OKEEHEELEE, LLC’s. Exhibit A. Wherefore, Plaintiff, JOSE YSMAEL PACHECO CASTILLO, requests the court to deny Defendant, UDR OKEEHEELEE, LLC’s motion to be notified of elective surgery. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was electronically submitted on this 7 day of September, 2021, to: Eric L. Reichenberger, Esq., Marshall, Dennehey, Warner, Coleman & Goggin, 2400 East Commercial Blvd., 11th Floor, Fort Lauderdale, FL 33308 (ELReichenberger@mdweg.com ; TCCarter@MDWCG.com RUBENSTEIN LAW, P.A. Attorneys for Plaintiff 9130 S. Dadeland Blvd, PH Miami, FL 33156 Tel: (305) 661-6000 Fax: (305) 670-7555 : im@rabensteiniaw. jmolano@rubensteinlaw.com eservice@rubensteinlaw.com By: _/s/ R. Timothy Vannatta R. Timothy Vannatta Florida Bar No.: 0055890IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO.: CACE-16-017856 (21) RYAN LIPNER, Plaintiff, Vv. FIRST TRANSIT, INC., AND VONNELL EVANS, Dafandante vorcnuains. / ORDER ON DEFENDANT'S MOTION TO BE NOTIFIED OF ELECTIVE SURGERIES THIS CAUSE having come before the Court on Defendant's Motion to be Notified of Elective Surgeries and the Court having heard argument of counsel, and being otherwise advised in the Premises, it is hereupon: ORDERED AND ADJUDGED that said Motion be, and the same is hereby X\ oe as DONE and ORDERED in Chambers at Broward County, Floyiga. tial fa of , 2017. FEB 23 2017 BARBARA MCCARTHY A TRUE Copy CIRCUIT COURT JUDGE Copies furnished to: i Lonni D. Tessler, Esq., Cole, Scott & Kissane, P.A., Lakeside Office Center, Suite 500, 600 North Pine Island Road, Plantation, Florida 33324, lonni.tessler@csklegal.com Yeemee Chan, Esq,, Steinger, Iscoe & Greene, P.A., 2400 E. Commercial Blvd., Suite 900, Fort Lauderdale, FL 33308, ychan@injurylawyers.com,ganselmo@injurylawyers.comIN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA SE NO: CACE 14-007628 (14) JOHN E. RICHARDS, Plaintiff, vs. JOSEPH D. STEPHENS and ELECTRIC INSURANCE COMPANY, a foreign corporation authorized to do and doing business in the State of Florida, Defendants. ! ORDER ON DEFENDANT'S MOTION TO BE NOTIFIED OF ELECTIVE ERIES THIS CAUSE having come before this Honorable Court on November 12 , 2014, on defendant, ELECTRIC INSURANCE COMPANY'S, Motion to be Notified of Elective Surmariac and the Court having raviawad tha mnatinn haard armimant af anineal and Venger, Gr We SOU ony Rone Une ENUUGH, HUGG GFQUlons Ul COUNOGT, GIG being otherwise fully advised in the premises, it is - ORDERED AND ADJUDGED that Defendant, ELECTRIC INSURANCE COMPANY'S, Motion to be Notified of Elective Surgeries, be and the same is hereby Denied. DONE AND ORDERED in Chambers at, Fort Lauderdale, Broward County, Florida, Cc. this day of November, 2014. *Q5. cai =i CARLOS AUGUSTO RODRIGUEZ,CIREWYT JUDSE Copies furnished: tare 4 ey FRED L. FULMER, ESQUIRE - fifulmerlaw@aol.com ERIC BERGER, ESQUIRE - Service@elblaw.net, GARY F. BAUMANN, ESQUIRE - gbaumann@baumannlegal.com(N THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA \ CASENO.:_ CACE 12- O2178) Whreeier : Plaintiff, ORDER ON Kr. d.. av Adame KA nL vs. t 25 Sant oSpetendant lective Surgery THIS CAUSE was considered by the Court on the following Motion(s) _toiee Notified at Elective Guraecs 7 ee TT T HEARING was held on_Nlavembee 21, 2a\7 THE COURT having considered the grounds for the Motion, taken testimony, heard argument and considered the applicable law, itis, ORDERED as follows: temed ordhout oceiudice . DONE AND ORDERED ON sla Nee ae) he ¢ 3 \, e art Bit Fort a Broward County, Florida. DWE LL La “Wisstoed Copies furnished: oe Open Court iF “cakcuit HEE CO By Mait Mavdin gd Bid wil\ (] By E-mail/Efiling Portal ' BCICA 118 (Rev 07/17)IN THE CIRCUIT COURT OFTHE / 7. RICHARD THampson JUDICIAL CIRCUIT, INAND FOR Born sae efx, Thy COUNTY, FLORIDA CEONERY Case Nox CACE /9- 12031 (03 ) Y, ) ae ). STATE FARM ) ; ) ORDER © THIS CAUSE having come on to be heard on a) fl, ; Defendant's/Piaintiiis . Moto FOE PRESERVATION OF PLAINTIFFS Booy (eVDENce) and the Court having heard argument of counsel, and being otherwise advised in the Premises, it is hereupon, ORDERED AND ADJUDGED that said Motion be, and the same is hereby diasel) (} 7 DONE AND ORDERED in Chambers, at a+. ldudrate,, forauind Cluwhy F, Me this, / day ot Athy, oof.