EFTA00723770.pdf

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