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Filing# 182420711 E-Filed 09/22/2023 11:51:15 AM
KEVIN JONES, an individual, IN THE CIRCUIT COURT OF THE 17th
JUDICIAL CIRCUIT IN AND FOR
Plaintiff, BROWARD COUNTY, FLORIDA
V
GENERAL JURISDICTION DIVISION
HOLLYWOOD LODGING, INC. dlbla
GLO BEST WESTERN LAUDERDALE- CASE NO. CACE22007224
HOLLYWOOD AIRPORT HOTEL,
a Florida Profit Corporation,
Defendant.
PLAINTIFF'S REQUEST FOR EMERGENCY RELIEF
The attached motion meets the criteria for consideration for emergency relief
pursuant to Administrative Order 2021-50-Civ, 2021-51-CO, or 2021-52-PRC:
1- The nature of the emergency is to prevent irreparable harm to Mr. Jones
who would otherwise be subjected to an unlawful compulsory medical examination during
an active trial period, the morning after Monday's holiday,in a location 3 hours away from
the venue of this proceeding, and the order for entitlement of was entered yesterday but
based on improper input and, notwithstanding that, the defendant is attempting to force
Mr. Jones to operate outside the confines of that ruling,the trial order, and binding rules
of procedure and caselaw.
2- The order at issue was entered by Judge Michael Robinson on 9/21/23 at
7:02 p.m.
3- A Judge has floi previously denied this request for emergency relief.
I hereby certify there exists a reasonably objective basis to request emergency relief
as set forth in the attached motion.
Kevin Jones
Jordan Redavid, Esq., as counsel for Plaintiff,
Fischer Redavid PLLC, 3325 Hollywood Blvd. Suite 500, Hollywood, FL 33021
Service@YourChampions.corn 1 Phone: (954) 860-8434
Fischer Redavid PLLC
Page 1
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 09/22/2023 11:51:14 AM.****
FISCHER REDAVID PLLC
3325 Hollywood Blvd.
Suite 500
Hollywood, FL 33021-6928
Phone: (954) 860-8434
/S/ JORDAN REDAVID, ESQ.
JORDAN REDAVID, ESQ.
Florida Bar No. 109227
Counsel for Plaintiff
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was served
electronically,via email, to counsel for the all counsel of record for the Defendant, on
September 22,2023.
FISCHER REDAVID PLLC
3325 Hollywood Blvd.
Suite 500
Hollywood, FL 33021-6928
Phone: (954) 860-8434
/S/ JORDAN REDAVID, ESQ.
JORDAN REDAVID, ESQ.
Florida Bar No. 109227
Counsel for Plaintiff
Fischer Redavid PLLC
Page 2
KEVIN JONES, an individual, IN THE CIRCUIT COURT OF THE 17th
JUDICIAL CIRCUIT IN AND FOR
Plaintiff, BROWARD COUNTY, FLORIDA
V
GENERAL JURISDICTION DIVISION
HOLLYWOOD LODGING, INC. dlbla
GLO BEST WESTERN LAUDERDALE- CASE NO. CACE22007224
HOLLYWOOD AIRPORT HOTEL,
a Florida Profit Corporation,
Defendant.
PLAINTIFF'SEMERGENCY MOTION FOR PROTECTIVE ORDER, TO STRIKE
UNTIMELY DEFENSE EXPERT, AND RECONSIDER 9/21/23 ORDER
Unfazed by a pending motion for fraud on the court, the defendant misled this
Court to get permission to conduct an untimely CME while this case awaits trial. No
sooner did yesterday's hearing end than the defendant began taking actions inconsistent
with the rulingand Florida law. Mr. Jones is entitled to emergency relief.
1. The Defendant's Post-Hearing Expert Switcheroo
Theodore Evans, MD, an orthopedist in Miami, was the only expert the defendant
ever listed-until yesterday's hearing. Here's what this Court needs to know.
On 4/26/23, the defense filed a notice for Dr. Evans to perform a CME in Miami on
5/26/23 (fourdays before the CME Because they never paid Dr. Evans, the
cutoff). CME
was cancelled on 5/19/23. Even still,on 5/30/23, the defendant filed a witness list
confirming Dr. Evans as its sole expert. Mr. Jones then served expert discovery to find
out Dr. Evans' opinions. Rather than respond, the defendant filed a motion asking to be
given another week. That motion was never set for hearing and no order was entered.
On 8/18/23 (23 days after the originaldue date and 16 days after the desired new date),
Mr. Jones moved to strike Dr. Evans. That motion is still pending.
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Only after Mr. Jones' motion to strike Dr. Evans was filed,and 86 days a#er the
CME cutoff, did the defendant move to extend the CME deadline and continue trial. The
was heard yesterday (during the trial period). Notably absent from that motion or
argument was any mention of a desire to retain and list a new expert, withdraw Dr. Evans,
or force Mr. Jones to travel to Kissimmee, Florida. To the contrary, the defendant's motion
repeatedly referred to Dr. Evans as "the provider"and "the CME doctor":
Page 5 of Defendant's Motion to Extend CME Deadline
"For context, Plaintiff's previously scheduled CME
had to be cancelled at
the last minute, as the provider did not have enough time between the
scheduling of the CME and the processing of the payment information."
"[T]he CME doctor did not have enough time process the Defendant's
to
payment prior to the CME, ultimately forcing the defense to cancel the
CME."
(emphasis added)
This Court gave the defendant leave (over objection) to conduct a CME by next
week. It did so by granting the motion before it,which said nothing about withdrawing Dr.
Evans (the subject of a pending motion to strike), a
listing new expert, forcing Mr. Jones
to travel to Kissimmee, or doing a CME on a date/time they chose without trying to
coordinate. That's because the defendant never mentioned it in its motion or at the
hearing. And while the defendant is free to withdraw Dr. Evans, the rest of its post-hearing
actions are unlawful under the operative trial order and Florida law.
After the hearing, at 10:27am yesterday, undersigned asked defense counsel for
to coordinate the
availability CME. There was no response. But at 5:07pm the defendant
filed a CME notice instructingMr. Jones to meet with Faissal Zahrawi, MD, at his office in
Kissimmee on 9/26/23 at 10am. This was the first time Dr. Zahrawi has ever been listed.
Fischer Redavid PLLC
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At 6:48pm yesterday, the defendant filed an amended expert witness lists only Dr.
Zahrawi, but not Dr. Evans. This Court entered its written order a few minutes later.
2. Defendants Cannot List New Experts Mid-Trial Period
2.1.Violations the Trial Order
Section IV(B)(i)of the trial order states that all expert witnesses must be served no
later than 90 days before calendar call. Dr. Evans was listed on the last date of eligibility
to do so (5/30/23).Dr. Zahrawi was now listed -115 afterthe cutoff,-25 days aftercalendar
call,and in while this case is up of the trial order
for trial-1Section IV(B)(ii) says the parties
shall also The defendant never even answered (much less
answer expert interrogatories.
timely) Mr. Jones' expert interrogatories and requests for production (CV, testimony
history list,reports, etc.) that were served back on 6/23/23 when Dr. Evans was the
defense expert. They stillhave not answered them for anyone, Dr. Zahrawi or otherwise.
Additionally,the discovery deadline has long since closed and the time for Mr. Jones to
file any motions challenging the defense expert(s) has too. (TrialOrder §§ VI, VII(B)3).2
2.2.Violations of Rule 1.280 and 1.380
Rule 1.280(b)(5) requires disclosure of certain critical information from testifying
experts. Mr. Jones served expert discovery back in June to obtain this responsive
information. The defendant didn't reply when it only listed Dr. Evans and it hasn't provided
any responses with Dr. Zahawri either. Rule 1.380(d) states that when a party fails to
serve answers to interrogatoriesand requests for production "the court in which the action
1
On Monday of this week, before the defendant ever noticed its motion to continue trial and extend
the CME deadline for hearing, Court asked counsel to appear on a Zoom to discuss potentiallystarting
this
trial because, after all,this case has been on an active trial docket since 9/11/23.
2
The defendant even participate in drafting a joint pretrialstipulation as Section Vlll required.
didn't
A document that also issupposed to address pending motions and expert challenges. Instead, undersigned
filed the portions that could be filed with only the plaintiff's
input.
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is pending may take any action authorized by" Rule 1.380(b)(2)(A)- (C).Those remedies
including not allowing the disobedient to support defenses, oppose claims, or introduce
certain matters into evidence (expert opinions through surprise,untimely experts).
2.3.Violations of Binding Caselaw
Mr. Jones' had known of Dr. Evans since May 2023. His counsel had no idea what
his opinions were or would be (because the defendant failed to respond to expert
discovery), but at least could spend time researching Dr. Evans to find potential case
histories and impeachment materials to prepare for trial months in advance. With the
surprise disclosure of Dr. Zahrawi during a trial period, there's no time to even do that.
Mr. Jones doesn't even have Dr. Zahrawi's C/V let alone testimony history. See Orkin
Exterminatinq Co., Inc. v. Knollwood Prop., Ltd., 710 So. 2d 697, 698 (Fla.5th DCA 1998)
(holding that experts must supply a list of cases of deposition and trial testimony for last
3 years "if the expert wishes to testifyin a Florida court.").
3
This is a clear Binger violation. There's a point at which expert disclosures,
untimely discovery, and efforts to prepare become too late and warrant exclusionary
remedies. This Court has every abilityto exclude experts not properly disclosed in
accordance with a pretrialorder. Binger, 401 So. 2d at 1310. This Court must be guided
by the prejudice heaped on Mr. Jones-and in this sense refers to the surprise
"[p]rejudice
in fact of the objecting party, and it is not dependent on the adverse nature of the
testimony." lgL (emphasis added). This is classic surprise in fact. Dr. Zahrawi was only
ever mentioned after business hours yesterday. There was no independent knowledge
on which Mr. Jones could anticipatethis sudden change.
King Pest Control, 401 So. 2d 1310 (Fla. 1981), and
3
Binger v. its progeny.
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Mr. Jones cannot cure this prejudice. Assuming, for a moment, this CME
proceeded. When would Dr. Zahawri provide his opinions? When would the defendant
serve complete responses to expert interrogatoriesand requests to produce? When
would he make himself available for a deposition? When would Mr. Jones own expert
have the chance to procure all those materials, review them, and prepare? The answer
to every question is: during an active trial period. The main reason we have rules of
procedure are "to prevent the use of surprise, trickery,bluff and legal gymnastics. Surf
Drugs, Inc. v. Vermette, 236 So. 2d 108,111 (Fla.1970). This Court correctly denied the
defendant's request for a continuance yesterday because there's no good cause. And as
the Fourth DCA has held, "Binqer gives the trial court discretion to strike those witnesses
to prevent the objecting party from being forced to chose between frantic last-minute
discovery and an unjustifieddelay of 0 trial." Fla. Marine Enterprises v. Bailey, 632 So.
2d 649 (Fla.4th DCA 1994); see also Reive v. Deutsche Bank Nat. Tr. Co., 190 So. 3d
93 (Fla.4th DCA 2015) (holding that admission of witnesses and documents not timely
disclosed constituted "surprisein fact" and violated Binger).
3. Defendant's Cannot Force CMEs in Random Locations
The unilaterally,
uncoordinated CME notice with Dr. Zahawri lists a location in
Kissimmee, Florida, which is nearly 3 hours away from the venue where this lawsuit
awaits trial. Although the defendant must pay Mr. Jones travel expenses, there's more to
impositions and inconvenience than money.
This is case that occurred at a hotel
a slip/fall in Broward County, the lawsuit was
filed in Broward County, and trial will take place in Broward County. In Youngblood v.
Michaud, the Fourth DCA granted a petitionfor writ of certiorari where the trial court
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ordered a 1.360 examination of a defendant in a place other than where the defendant
lived. 593 So. 2d 568 (Fla.4th DCA 1992). A few years later,the Fourth DCA explained
that while Rule 1.360 "does not restrict where the examination is to be performed" and
Youngblood a hard
did not "establish[] and fast rule regarding the location of [a CME],"
our state rule is modeled after Federal Rule 35, which "has been interpreted as permitting
to be examined
the court to order the plaintiff where the trial will be held, reasoning that
this was and that would
the venue selected by the plaintiff make it convenient for the
McKennv
physician to testify." v. Airport Rent-A-Car, Inc.,686 So. 2d 771, 772 (Fla.4th
DCA 1997) (bold added). While deciding whether to permit a CME to occur in one place
or another is ultimately a matter of discretion, allowing the defendant to force Mr. Jones
to get to/from Kissimmee, FL from his home in North Carolina where there is absolutely
no tie to that region of Florida would be an abuse of discretion. The nearest airport is
Orlando (MCO), which is -11 miles away from Kissimmee. That necessitates a rental car
or private car transport both ways. It also requires undersigned to find and arrange for a
court reporter and videographer to attend, as is Mr. Jones' right,on a Friday before a
holiday Monday and the CME is set to occur on Tuesday morning.
4
It's just unfair.4
4. A Reconsideration of Yesterdays' Order and/or Protective Order is Warranted
This Court ruled on a motion that didn't even cite the excusable neglect standard,
but did cite the defendant's historical failures to secure Dr. Evans for a timely CME. This
Court ruled after hearing argument from defense counsel who never once suggested Dr.
Evans (the subject to a motion to strike for failure to respond to expert discovery) would
4
this motion, defense counsel emailed undersigned to offer to have Dr. Zahawri
While drafting
examine Mr. Jones
Miami, not Kissimmee, so this particular argument re: location might be moot if that's
in
true. Nevertheless, it's removal doesn't change the necessary outcome by this Court.
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be withdrawn and a new expert would be disclosed. After 5pm is when the defense began
revealing its true plan. If that's not a basis for this Court to revisit its non-final order from
yesterday, nothing is. "[A] trial court may revisit any nonfinal rulings."Larson & Larson,
P.A. v. TSE Indus., Inc.,22 So. 3d 36 (Fla.2009). This Court should vacate its order from
yesterday and enter another one that not only denies the defendant's motion for
continuance, but also its motion to untimely extend the CME deadlines. This Court could
base is rulingon a reconsideration of the realitythat the defendant has not trulypresented
excusable neglect for the CME relief,or based on the false premises offered to get the
relief only to do otherwise. Either way, that's a proper use of discretion.
Additionally or alternatively,this Court should enter a protective order that Mr.
Jones need not attend a CME with Dr. Zahwri. The standard is good cause. Fla. R. Civ.
P. 1.280(c).The arguments in Sections 2 and/or 3 above establish good cause. It stops
oppression and undue burden on Mr. Jones and his counsel, who needs to scramble to
find court reporters and a videographer (regardless of location),book flightsand cars
(regardless of location)to get from NC to FL, all on a Friday/weekend with a holiday
Monday before Tuesday CME.5 And Mr. Jones should be afforded monetary sanctions in
the form of attorneys'fees for having to even litigate
this surprise,emergency issue after
yesterday's hearing. Fla. R. Civ. P. 1.280(c) (the provisions of Rule 1.380(a)(4)apply with
protectiveorders).
5 defense counsel immediately after yesterday's hearing to
Recall, despite undersigned asking
circulate dates of availabilityto coordinate the CME, the defendant unilaterallyset it later that day. Only
then did the defendant say it would move the date/time if it could be coordinated with everyone involved.
That's backwards. Moreover, at the time of undersigned's attempt to coordinate the CME, it was based on
the Court's ruling.At that time there was no way of knowing the defendant was going to pull a switcheroo,
withdraw Dr. Evans, and drop Dr. Zahawri. No CME with a surprise doctor should be permitted ever.
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5. Final Considerations
The defendant waited 460 days after its counsel entered this case to attempt to
coordinate a CME with Dr. Evans earlier this year. It then fumbled that opportunity,which
would have been timely,because it failed to timely pay its own expert. It then waited 355
days after Mr. Jones served responses to interrogatories,87 days after Mr. Jones was
deposed, and 86 days after the CME deadline to move for relief. That is not cause, good
cause, or excusable neglect. It's inexcusable neglect that can't be countenanced.
Extensions of time are essentially requests for equitable relief that warrant
consideration of all the relevant circumstances, including the reason for the delay,
duration of delay, and the movant's good faith. Boudout v. Boudout, 925 So. 409, 416
(Fla. 5th DCA 2006). Here, there is now clear evidence of bad faith. The defendant's
entire motion for the CME extension never once mentioned that it would drop Dr. Evans
and surprise Mr. Jones with a new expert. The Court's ruling yesterday (over objection)
give the defendant through next week to coordinate a CME. The and obvious and
implicit
fair import is that the defendant would use its timely disclosed expert. If the defendant
couldn't comply with that order either, so be it.That's the consequence it put on itself,but
it shouldn't get to benefit from its own dilatory,inexcusable misconduct.
Mr. Jones is now asking this Court to:
Reconsider its nonfinal order entered yesterday (9/22/23), vacate it,and
enter a new
order denying the defendant's motion for a continuance and
extension of the CME deadline in toto.
o Alternatively, issue a protective order that Mr. Jones does not need to
undergo a CME by a new surprise defense expert, Dr. Zahawri.
Evans to the extent there's any outside chance he's in play for the
Strike Dr.
stated reasons and in Mr. Jones' previously filed motion to strike him.
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I Strike Dr. Zaharwi as an untimely, surprise expert for the stated reasons.
. Impose monetary sanctions in the form of attorney fees payable to Mr.
Jones' counsel for the time spent litigating
this issue.6
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was served
electronically,via email, to counsel for the all counsel of record for the Defendant, on
September 22,2023.
FISCHER REDAVID PLLC
3325 Hollywood Blvd.
Suite 500
Hollywood, FL 33021-6928
Phone: (954) 860-8434
/S/JORDAN REDAVID, ESQ.
JORDAN REDAVID, ESQ.
Florida Bar No. 109227
Counsel for Plaintiff
6
Mr. Jones would also like an opportunity to finish the hearing on his motion to strike the defendant's
pleadings forfraud on the court, Rule 1.380, and/or inequitable misconduct doctrine. It's been heard partially
twice and needs to be heard before trial. To the extent an order can be issued setting a time/date for that
hearing to finish, Mr. Jones is requesting that. Any such order should deem the previously served
subpoenas on the 3 witnesses still valid. The witnesses are two lawyers of record in this case and the
defendant-owner. Given that defense counsel personally represents all three of them too, and refuses to
produce them voluntarily,this relief is appropriate to avoid additionally delay and costs.
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Preview
Filing# 182420711 E-Filed 09/22/2023 11:51:15 AM KEVIN JONES, an individual, IN THE CIRCUIT COURT OF THE 17th JUDICIAL CIRCUIT IN AND FOR Plaintiff, BROWARD COUNTY, FLORIDA V GENERAL JURISDICTION DIVISION HOLLYWOOD LODGING, INC. dlbla GLO BEST WESTERN LAUDERDALE- CASE NO. CACE22007224 HOLLYWOOD AIRPORT HOTEL, a Florida Profit Corporation, Defendant. PLAINTIFF'S REQUEST FOR EMERGENCY RELIEF The attached motion meets the criteria for consideration for emergency relief pursuant to Administrative Order 2021-50-Civ, 2021-51-CO, or 2021-52-PRC: 1- The nature of the emergency is to prevent irreparable harm to Mr. Jones who would otherwise be subjected to an unlawful compulsory medical examination during an active trial period, the morning after Monday's holiday,in a location 3 hours away from the venue of this proceeding, and the order for entitlement of was entered yesterday but based on improper input and, notwithstanding that, the defendant is attempting to force Mr. Jones to operate outside the confines of that ruling,the trial order, and binding rules of procedure and caselaw. 2- The order at issue was entered by Judge Michael Robinson on 9/21/23 at 7:02 p.m. 3- A Judge has floi previously denied this request for emergency relief. I hereby certify there exists a reasonably objective basis to request emergency relief as set forth in the attached motion. Kevin Jones Jordan Redavid, Esq., as counsel for Plaintiff, Fischer Redavid PLLC, 3325 Hollywood Blvd. Suite 500, Hollywood, FL 33021 Service@YourChampions.corn 1 Phone: (954) 860-8434 Fischer Redavid PLLC Page 1 *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 09/22/2023 11:51:14 AM.**** FISCHER REDAVID PLLC 3325 Hollywood Blvd. Suite 500 Hollywood, FL 33021-6928 Phone: (954) 860-8434 /S/ JORDAN REDAVID, ESQ. JORDAN REDAVID, ESQ. Florida Bar No. 109227 Counsel for Plaintiff CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served electronically,via email, to counsel for the all counsel of record for the Defendant, on September 22,2023. FISCHER REDAVID PLLC 3325 Hollywood Blvd. Suite 500 Hollywood, FL 33021-6928 Phone: (954) 860-8434 /S/ JORDAN REDAVID, ESQ. JORDAN REDAVID, ESQ. Florida Bar No. 109227 Counsel for Plaintiff Fischer Redavid PLLC Page 2 KEVIN JONES, an individual, IN THE CIRCUIT COURT OF THE 17th JUDICIAL CIRCUIT IN AND FOR Plaintiff, BROWARD COUNTY, FLORIDA V GENERAL JURISDICTION DIVISION HOLLYWOOD LODGING, INC. dlbla GLO BEST WESTERN LAUDERDALE- CASE NO. CACE22007224 HOLLYWOOD AIRPORT HOTEL, a Florida Profit Corporation, Defendant. PLAINTIFF'SEMERGENCY MOTION FOR PROTECTIVE ORDER, TO STRIKE UNTIMELY DEFENSE EXPERT, AND RECONSIDER 9/21/23 ORDER Unfazed by a pending motion for fraud on the court, the defendant misled this Court to get permission to conduct an untimely CME while this case awaits trial. No sooner did yesterday's hearing end than the defendant began taking actions inconsistent with the rulingand Florida law. Mr. Jones is entitled to emergency relief. 1. The Defendant's Post-Hearing Expert Switcheroo Theodore Evans, MD, an orthopedist in Miami, was the only expert the defendant ever listed-until yesterday's hearing. Here's what this Court needs to know. On 4/26/23, the defense filed a notice for Dr. Evans to perform a CME in Miami on 5/26/23 (fourdays before the CME Because they never paid Dr. Evans, the cutoff). CME was cancelled on 5/19/23. Even still,on 5/30/23, the defendant filed a witness list confirming Dr. Evans as its sole expert. Mr. Jones then served expert discovery to find out Dr. Evans' opinions. Rather than respond, the defendant filed a motion asking to be given another week. That motion was never set for hearing and no order was entered. On 8/18/23 (23 days after the originaldue date and 16 days after the desired new date), Mr. Jones moved to strike Dr. Evans. That motion is still pending. Fischer Redavid PLLC Page 1 Only after Mr. Jones' motion to strike Dr. Evans was filed,and 86 days a#er the CME cutoff, did the defendant move to extend the CME deadline and continue trial. The was heard yesterday (during the trial period). Notably absent from that motion or argument was any mention of a desire to retain and list a new expert, withdraw Dr. Evans, or force Mr. Jones to travel to Kissimmee, Florida. To the contrary, the defendant's motion repeatedly referred to Dr. Evans as "the provider"and "the CME doctor": Page 5 of Defendant's Motion to Extend CME Deadline "For context, Plaintiff's previously scheduled CME had to be cancelled at the last minute, as the provider did not have enough time between the scheduling of the CME and the processing of the payment information." "[T]he CME doctor did not have enough time process the Defendant's to payment prior to the CME, ultimately forcing the defense to cancel the CME." (emphasis added) This Court gave the defendant leave (over objection) to conduct a CME by next week. It did so by granting the motion before it,which said nothing about withdrawing Dr. Evans (the subject of a pending motion to strike), a listing new expert, forcing Mr. Jones to travel to Kissimmee, or doing a CME on a date/time they chose without trying to coordinate. That's because the defendant never mentioned it in its motion or at the hearing. And while the defendant is free to withdraw Dr. Evans, the rest of its post-hearing actions are unlawful under the operative trial order and Florida law. After the hearing, at 10:27am yesterday, undersigned asked defense counsel for to coordinate the availability CME. There was no response. But at 5:07pm the defendant filed a CME notice instructingMr. Jones to meet with Faissal Zahrawi, MD, at his office in Kissimmee on 9/26/23 at 10am. This was the first time Dr. Zahrawi has ever been listed. Fischer Redavid PLLC Page 2 At 6:48pm yesterday, the defendant filed an amended expert witness lists only Dr. Zahrawi, but not Dr. Evans. This Court entered its written order a few minutes later. 2. Defendants Cannot List New Experts Mid-Trial Period 2.1.Violations the Trial Order Section IV(B)(i)of the trial order states that all expert witnesses must be served no later than 90 days before calendar call. Dr. Evans was listed on the last date of eligibility to do so (5/30/23).Dr. Zahrawi was now listed -115 afterthe cutoff,-25 days aftercalendar call,and in while this case is up of the trial order for trial-1Section IV(B)(ii) says the parties shall also The defendant never even answered (much less answer expert interrogatories. timely) Mr. Jones' expert interrogatories and requests for production (CV, testimony history list,reports, etc.) that were served back on 6/23/23 when Dr. Evans was the defense expert. They stillhave not answered them for anyone, Dr. Zahrawi or otherwise. Additionally,the discovery deadline has long since closed and the time for Mr. Jones to file any motions challenging the defense expert(s) has too. (TrialOrder §§ VI, VII(B)3).2 2.2.Violations of Rule 1.280 and 1.380 Rule 1.280(b)(5) requires disclosure of certain critical information from testifying experts. Mr. Jones served expert discovery back in June to obtain this responsive information. The defendant didn't reply when it only listed Dr. Evans and it hasn't provided any responses with Dr. Zahawri either. Rule 1.380(d) states that when a party fails to serve answers to interrogatoriesand requests for production "the court in which the action 1 On Monday of this week, before the defendant ever noticed its motion to continue trial and extend the CME deadline for hearing, Court asked counsel to appear on a Zoom to discuss potentiallystarting this trial because, after all,this case has been on an active trial docket since 9/11/23. 2 The defendant even participate in drafting a joint pretrialstipulation as Section Vlll required. didn't A document that also issupposed to address pending motions and expert challenges. Instead, undersigned filed the portions that could be filed with only the plaintiff's input. Fischer Redavid PLLC Page 3 is pending may take any action authorized by" Rule 1.380(b)(2)(A)- (C).Those remedies including not allowing the disobedient to support defenses, oppose claims, or introduce certain matters into evidence (expert opinions through surprise,untimely experts). 2.3.Violations of Binding Caselaw Mr. Jones' had known of Dr. Evans since May 2023. His counsel had no idea what his opinions were or would be (because the defendant failed to respond to expert discovery), but at least could spend time researching Dr. Evans to find potential case histories and impeachment materials to prepare for trial months in advance. With the surprise disclosure of Dr. Zahrawi during a trial period, there's no time to even do that. Mr. Jones doesn't even have Dr. Zahrawi's C/V let alone testimony history. See Orkin Exterminatinq Co., Inc. v. Knollwood Prop., Ltd., 710 So. 2d 697, 698 (Fla.5th DCA 1998) (holding that experts must supply a list of cases of deposition and trial testimony for last 3 years "if the expert wishes to testifyin a Florida court."). 3 This is a clear Binger violation. There's a point at which expert disclosures, untimely discovery, and efforts to prepare become too late and warrant exclusionary remedies. This Court has every abilityto exclude experts not properly disclosed in accordance with a pretrialorder. Binger, 401 So. 2d at 1310. This Court must be guided by the prejudice heaped on Mr. Jones-and in this sense refers to the surprise "[p]rejudice in fact of the objecting party, and it is not dependent on the adverse nature of the testimony." lgL (emphasis added). This is classic surprise in fact. Dr. Zahrawi was only ever mentioned after business hours yesterday. There was no independent knowledge on which Mr. Jones could anticipatethis sudden change. King Pest Control, 401 So. 2d 1310 (Fla. 1981), and 3 Binger v. its progeny. Fischer Redavid PLLC Page 4 Mr. Jones cannot cure this prejudice. Assuming, for a moment, this CME proceeded. When would Dr. Zahawri provide his opinions? When would the defendant serve complete responses to expert interrogatoriesand requests to produce? When would he make himself available for a deposition? When would Mr. Jones own expert have the chance to procure all those materials, review them, and prepare? The answer to every question is: during an active trial period. The main reason we have rules of procedure are "to prevent the use of surprise, trickery,bluff and legal gymnastics. Surf Drugs, Inc. v. Vermette, 236 So. 2d 108,111 (Fla.1970). This Court correctly denied the defendant's request for a continuance yesterday because there's no good cause. And as the Fourth DCA has held, "Binqer gives the trial court discretion to strike those witnesses to prevent the objecting party from being forced to chose between frantic last-minute discovery and an unjustifieddelay of 0 trial." Fla. Marine Enterprises v. Bailey, 632 So. 2d 649 (Fla.4th DCA 1994); see also Reive v. Deutsche Bank Nat. Tr. Co., 190 So. 3d 93 (Fla.4th DCA 2015) (holding that admission of witnesses and documents not timely disclosed constituted "surprisein fact" and violated Binger). 3. Defendant's Cannot Force CMEs in Random Locations The unilaterally, uncoordinated CME notice with Dr. Zahawri lists a location in Kissimmee, Florida, which is nearly 3 hours away from the venue where this lawsuit awaits trial. Although the defendant must pay Mr. Jones travel expenses, there's more to impositions and inconvenience than money. This is case that occurred at a hotel a slip/fall in Broward County, the lawsuit was filed in Broward County, and trial will take place in Broward County. In Youngblood v. Michaud, the Fourth DCA granted a petitionfor writ of certiorari where the trial court Fischer Redavid PLLC Page 5 ordered a 1.360 examination of a defendant in a place other than where the defendant lived. 593 So. 2d 568 (Fla.4th DCA 1992). A few years later,the Fourth DCA explained that while Rule 1.360 "does not restrict where the examination is to be performed" and Youngblood a hard did not "establish[] and fast rule regarding the location of [a CME]," our state rule is modeled after Federal Rule 35, which "has been interpreted as permitting to be examined the court to order the plaintiff where the trial will be held, reasoning that this was and that would the venue selected by the plaintiff make it convenient for the McKennv physician to testify." v. Airport Rent-A-Car, Inc.,686 So. 2d 771, 772 (Fla.4th DCA 1997) (bold added). While deciding whether to permit a CME to occur in one place or another is ultimately a matter of discretion, allowing the defendant to force Mr. Jones to get to/from Kissimmee, FL from his home in North Carolina where there is absolutely no tie to that region of Florida would be an abuse of discretion. The nearest airport is Orlando (MCO), which is -11 miles away from Kissimmee. That necessitates a rental car or private car transport both ways. It also requires undersigned to find and arrange for a court reporter and videographer to attend, as is Mr. Jones' right,on a Friday before a holiday Monday and the CME is set to occur on Tuesday morning. 4 It's just unfair.4 4. A Reconsideration of Yesterdays' Order and/or Protective Order is Warranted This Court ruled on a motion that didn't even cite the excusable neglect standard, but did cite the defendant's historical failures to secure Dr. Evans for a timely CME. This Court ruled after hearing argument from defense counsel who never once suggested Dr. Evans (the subject to a motion to strike for failure to respond to expert discovery) would 4 this motion, defense counsel emailed undersigned to offer to have Dr. Zahawri While drafting examine Mr. Jones Miami, not Kissimmee, so this particular argument re: location might be moot if that's in true. Nevertheless, it's removal doesn't change the necessary outcome by this Court. Fischer Redavid PLLC Page 6 be withdrawn and a new expert would be disclosed. After 5pm is when the defense began revealing its true plan. If that's not a basis for this Court to revisit its non-final order from yesterday, nothing is. "[A] trial court may revisit any nonfinal rulings."Larson & Larson, P.A. v. TSE Indus., Inc.,22 So. 3d 36 (Fla.2009). This Court should vacate its order from yesterday and enter another one that not only denies the defendant's motion for continuance, but also its motion to untimely extend the CME deadlines. This Court could base is rulingon a reconsideration of the realitythat the defendant has not trulypresented excusable neglect for the CME relief,or based on the false premises offered to get the relief only to do otherwise. Either way, that's a proper use of discretion. Additionally or alternatively,this Court should enter a protective order that Mr. Jones need not attend a CME with Dr. Zahwri. The standard is good cause. Fla. R. Civ. P. 1.280(c).The arguments in Sections 2 and/or 3 above establish good cause. It stops oppression and undue burden on Mr. Jones and his counsel, who needs to scramble to find court reporters and a videographer (regardless of location),book flightsand cars (regardless of location)to get from NC to FL, all on a Friday/weekend with a holiday Monday before Tuesday CME.5 And Mr. Jones should be afforded monetary sanctions in the form of attorneys'fees for having to even litigate this surprise,emergency issue after yesterday's hearing. Fla. R. Civ. P. 1.280(c) (the provisions of Rule 1.380(a)(4)apply with protectiveorders). 5 defense counsel immediately after yesterday's hearing to Recall, despite undersigned asking circulate dates of availabilityto coordinate the CME, the defendant unilaterallyset it later that day. Only then did the defendant say it would move the date/time if it could be coordinated with everyone involved. That's backwards. Moreover, at the time of undersigned's attempt to coordinate the CME, it was based on the Court's ruling.At that time there was no way of knowing the defendant was going to pull a switcheroo, withdraw Dr. Evans, and drop Dr. Zahawri. No CME with a surprise doctor should be permitted ever. Fischer Redavid PLLC Page 7 5. Final Considerations The defendant waited 460 days after its counsel entered this case to attempt to coordinate a CME with Dr. Evans earlier this year. It then fumbled that opportunity,which would have been timely,because it failed to timely pay its own expert. It then waited 355 days after Mr. Jones served responses to interrogatories,87 days after Mr. Jones was deposed, and 86 days after the CME deadline to move for relief. That is not cause, good cause, or excusable neglect. It's inexcusable neglect that can't be countenanced. Extensions of time are essentially requests for equitable relief that warrant consideration of all the relevant circumstances, including the reason for the delay, duration of delay, and the movant's good faith. Boudout v. Boudout, 925 So. 409, 416 (Fla. 5th DCA 2006). Here, there is now clear evidence of bad faith. The defendant's entire motion for the CME extension never once mentioned that it would drop Dr. Evans and surprise Mr. Jones with a new expert. The Court's ruling yesterday (over objection) give the defendant through next week to coordinate a CME. The and obvious and implicit fair import is that the defendant would use its timely disclosed expert. If the defendant couldn't comply with that order either, so be it.That's the consequence it put on itself,but it shouldn't get to benefit from its own dilatory,inexcusable misconduct. Mr. Jones is now asking this Court to: Reconsider its nonfinal order entered yesterday (9/22/23), vacate it,and enter a new order denying the defendant's motion for a continuance and extension of the CME deadline in toto. o Alternatively, issue a protective order that Mr. Jones does not need to undergo a CME by a new surprise defense expert, Dr. Zahawri. Evans to the extent there's any outside chance he's in play for the Strike Dr. stated reasons and in Mr. Jones' previously filed motion to strike him. Fischer Redavid PLLC Page 8 I Strike Dr. Zaharwi as an untimely, surprise expert for the stated reasons. . Impose monetary sanctions in the form of attorney fees payable to Mr. Jones' counsel for the time spent litigating this issue.6 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served electronically,via email, to counsel for the all counsel of record for the Defendant, on September 22,2023. FISCHER REDAVID PLLC 3325 Hollywood Blvd. Suite 500 Hollywood, FL 33021-6928 Phone: (954) 860-8434 /S/JORDAN REDAVID, ESQ. JORDAN REDAVID, ESQ. Florida Bar No. 109227 Counsel for Plaintiff 6 Mr. Jones would also like an opportunity to finish the hearing on his motion to strike the defendant's pleadings forfraud on the court, Rule 1.380, and/or inequitable misconduct doctrine. It's been heard partially twice and needs to be heard before trial. To the extent an order can be issued setting a time/date for that hearing to finish, Mr. Jones is requesting that. Any such order should deem the previously served subpoenas on the 3 witnesses still valid. The witnesses are two lawyers of record in this case and the defendant-owner. Given that defense counsel personally represents all three of them too, and refuses to produce them voluntarily,this relief is appropriate to avoid additionally delay and costs. Fischer Redavid PLLC Page 9