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Case 6:10-cv-01713-CEH-KRS Document 152

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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION IN ADMIRALTY CASE NO.: 6:10-CV-1713-CEH-KRS THOMAS P. KEENAN, III Plaintiff, v. BEYEL BROTHERS, INC., Defendant. ____________________________________/ DEFENDANT BEYEL BROTHERS, INC.'S MOTION FOR SANCTIONS PURSUANT TO RULE 11 COMES NOW Defendant BEYEL BROTHERS, INC. ("BEYEL"), by and through its undersigned counsel, and pursuant to Rule 11 of the Federal Rules of Civil Procedure hereby files its Motion for Sanctions and states: I. INTRODUCTION Plaintiffs counsel has admitted in record pleadings filed in this case that Dr. Richard Hynes of the B.A.C.K. Center was KEENANs treating physician in relation to any and all complaints related to his lumbar and lower back. See, DE-92, page 7. Docket Entry 92 was submitted by Plaintiff in his opposition to BEYELs Motion to Compel a maximum medical improvement (MMI) examination of the Plaintiffs lumbar spine. Specifically, in DE-92, filed with the court on January 13, 2012, Plaintiffs counsel stated: Setting aside the fact BEYEL had the opportunity to examine KEENANS lumbar spine in the condition it will be at the start of trial, the Cox case is further distinguishable. In Cox, the trial courts order had the impact of allowing the seaman to have his handpicked experts examine him before trial to present up-to-date testimony regarding his physical condition, his healing process, his future disabilities (if any) and his damages but not allowing the cruise line the same ability. Unlike the seaman in Cox, who was relying on expert testimony of doctors who were not tendered by

Case 6:10-cv-01713-CEH-KRS Document 152

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CASE NO.: 6:10-CV-1713-CEH-KRS the cruise line for treatment, KEENAN is simply relying upon the testimony of his treating physician Dr. Richard Hynes who was agreed upon by both KEENAN and BEYEL to be the treating doctor. DE-92 at p. 7. This statement that Dr. Hynes was the treating physician tendered by BEYEL for KEENANs lumbar complaints was made to the Court on January 13, 20121 and, importantly, Dr. Hynes deposition was taken on January 19, 2012. Dr. Hynes met with Plaintiffs counsel and met with

KEENAN prior to his deposition. Apparently this meeting was not considered a treatment visit as no request for treatment or payment was submitted to HSI2, but rather was a meeting related to Dr. Hynes status as a testifying expert witness. The result of this meeting with the Plaintiff and Plaintiffs counsel is brought into focus by Dr. Hynes testimony on page 58 of his deposition: I noted it in the record that in about three or four months after the injuries he began complaining at least in the record but in an interview today with the patient he states clearly he complained of back complaints, but everyone focused on the neck, and he was told at one point that we couldn't treat his low back condition here so no one focused on it. I have to review that more. I haven't had a chance to really understand what we were allowed to treat, not treat. See, Exhibit 1, Hynes dep. p. 58, lines 16-25. The meetings that Dr. Hynes had with the Plaintiff and Plaintiffs attorney on the morning of January 19, 2012 funneled hearsay regarding an unfounded allegation that someone told KEENAN that his lower back would not, or could not, be treated. Furthermore, for KEENAN to say to Dr. Hynes that the Back Center could not treat his lower back condition is an impossibility, because since July 23, 2010, when KEENAN appointed his current attorney as his counsel, no one from BEYEL has spoken or communicated with KEENAN other than at his

Plaintiffs counsel also admitted in DE-65 filed in this case that Dr. Richard Hynes of the B.A.C.K. Center was KEENANs treating physician in relation to any and all complaints related to his lumbar and lower back. See, DE-65, p. 4, 8. Health Systems International (HSI). HSI is a medical case manager which was hired to manage Mr. Keenans medical treatment on BEYELs behalf. 2
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CASE NO.: 6:10-CV-1713-CEH-KRS deposition3. Therefore, any such conversation or communication between KEENAN and BEYEL could not have taken place. Certainly, KEENAN did not testify that such a request or refusal was made during his deposition. Looking to the Plaintiffs own deposition testimony we note that he testified as follows: Q. Did Mr. Valdez or Dr. Hynes put you at maximum medical improvement? Mr. Brais: Form. Q. Have they advised that they found you to be at maximum medical improvement? Mr. Brais: Same. A. They believe that theyve done everything they can for me at this time. See, Exhibit 2, Deposition of Plaintiff, pp. 201-202. The instant motion for sanctions is based primarily on the Plaintiffs Reply Brief [D.E. 115] 4. Specifically, on page 1 of DE-115 the Plaintiff writes, Moreover, though not revealed in the opposition memorandum, BEYEL failed to this day to tender cure for KEENANS lumbar injury and on page 6 of DE-115 the Plaintiff writes BEYEL, however, has not authorized treatment for the lumbar spine. On February 22, 2012, the Magistrate Judge entered an Order [D.E. 114] allowing the Plaintiff to file a Reply brief in support of the Plaintiff's Motion to Compel Better Responses to Renewed 2nd Request for Production proffering evidence supporting the claim for punitive damages and cautioned the Plaintiff that any filing should be consistent with the requirements of Fed. R. Civ. P. 11 . See, D.E. 114, Emphasis added. Based on the Plaintiffs Reply Brief [D.E. 115] the Magistrate Judge entered an Order

At which time he testified the B.A.C.K. Center had done all they could for him. See, Exhibit 2, Deposition of Plaintiff, pp. 201-202 cited infra. However, the Plaintiff also made the following statement in his Motion for Summary judgment [DE-121]: Finally, KEENAN did not, as a result of work related accidents, receive medical treatment relative (cure) for the lumbar spine injury. See, DE-121, p. 3, 8. Additionally, in the Plaintiffs response to the Rule 72 objections in DE-148, p. 18 related to the lumbar treatments, and after they were served with the draft Motion for Sanctions, the Plaintiff wrote, The answer is simple. Beyel Brothers did not authorize treatment for the lumbar spine. 3
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CASE NO.: 6:10-CV-1713-CEH-KRS [D.E. 116] granting the Plaintiffs Motion to Compel Better Responses to Renewed 2nd Request for Production based on the following: In a reply authorized by the Court, Keenan cited to evidence that he contends shows that Beyel Brothers delayed in tendering a proper physician for his cervical injuries and failed to tender cure for his lumbar injury. Doc. No. 115. The Parties' disputes regarding whether maintenance and cure obligations have been timely paid are issues of fact that cannot be resolved in a discovery dispute. . . . Keenan has proffered some evidence in support of his prayer for punitive damages. D.E. 116. BEYEL moved for reconsideration of the Magistrates Order on the grounds that the Plaintiff made factual misrepresentations to the Court when he filed Plaintiff's Reply Brief [D.E. 115] and that the factual misrepresentations formed the basis of the Magistrates Order. See, Mtn. for Reconsideration, DE118. On March 5, 2012, the Magistrate Judge denied BEYELs motion for reconsideration at D.E. 127. On March 6, 2012, BEYEL filed objections, pursuant to Rule 72, to the District Court Judge regarding the Magistrates Order. BEYELs objections still pend before the District Court. However, on March 27, 2012 the Plaintiff then wrote at page 17 of DE-148, a Response to the Rule 72 Objections, Following this date and for a little over a month it appears some physical therapy was provided to KEENAN. The Plaintiff should be sanctioned because this physical therapy is the exact medical treatment [cure] that Dr. Hynes and the B.A.C.K. Center prescribed and carried out in order to address the lumbar complaints of KEENAN. See generally, Section C infra. This is the very core of the reasonable opportunity for further investigation required by Rule 11(b). The pre-filing conference pursuant to the Local Rules was conducted on March 28, 2012 and undersigned counsel stressed that the statements and admissions in DE-148 were in direct conflict with the proffer made in DE-115. This fact was also documented in record e-mail traffic sent prior to the local rules conference and discussed during the local rules conference. Plaintiffs counsel requested until noon on April 2, 2012 to determine whether or not to withdraw DE-115. Undersigned counsel also stressed 4

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CASE NO.: 6:10-CV-1713-CEH-KRS during the telephone conference on March 28, 2012 that the Plaintiffs representations and statements made in DE-115 were at odds with the Plaintiffs representations made in DE-92. On March 30, 2012 Plaintiffs counsel confirmed that they would not withdraw DE-115. On March 7 and March 9, 2012, BEYEL placed Plaintiff on notice, pursuant to Rule 11, that they should immediately withdraw Plaintiffs Reply Brief [D.E. 115] otherwise the instant5 Motion for Sanctions would be filed after the expiration of the twenty-one (21) days detailed in Rule 11. The twenty-one (21) day time period expired on March 30, 2012. As detailed more fully below, the requests for medical cure approved and paid for through HSI include extensive medical treatments to the Plaintiffs lumbar spine / lower back. This factual record is clear and warrants sanctions against the Plaintiff based on his allegation that BEYEL has never tendered treatment for his lumbar spine / lower back. The Plaintiff has not produced, and cannot produce, any evidence that BEYEL or HSI denied a single request for medical cure or medical treatments to the Plaintiffs lumbar spine / lower back. The Plaintiffs allegation -- for the first time in over seventeen (17) months of litigation -- that BEYEL BROS. has failed to tender any care for his alleged lumbar spine injuries is a complete falsehood and contradicts the Plaintiffs own sworn deposition testimony, the previous statements made by Plaintiffs counsel in record filings on the docket and the authenticated medical records which his treating orthopedist, Dr. Hynes,6 deferred to in his deposition. Plaintiffs
5

The draft Motion for Sanctions was sent to the Plaintiff on March 9, 2012 via e-mail and U.S. Mail. As the Plaintiff has continued to make the same sanctionable assertions to the Court the draft Motion has been updated and the revisions and additional exhibits were identified and discussed during the pre-filing conference on March 28, 2012. Dr. Hynes is both a treating physician and a testifying expert for the Plaintiff. Dr. Hynes met with the Plaintiff and the Plaintiffs counsel immediately prior to Dr. Hynes deposition on January 19, 2012. Plaintiff had declared Dr. Hynes as his expert witness on August 15, 2011 [D.E. 26]. Apparently this meeting was not considered a treatment visit as no request for treatment or payment was submitted to HSI. The result of this meeting with the Plaintiff was that Dr. Hynes funneled hearsay (which contradicts the Plaintiffs sworn deposition testimony) from the Plaintiff at his deposition regarding the Plaintiffs lumbar complaints to Dr. Hynes. See, Exhibit 1, p. 58. 5
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CASE NO.: 6:10-CV-1713-CEH-KRS counsel could not have reasonably believed that the Plaintiff had not received treatment [cure] for his lumbar spine. II. MEMORANDUM OF LAW A. LEGAL STANDARD Rule 11(b) provides: (b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper--whether by signing, filing, submitting, or later advocating it--an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information. Fed. R. Civ. P. 11(b). Furthermore, the Eleventh Circuit has set out the following standard for the imposition of Rule 11 sanctions: In this circuit, a court confronted with a motion for Rule 11 sanctions first determines whether the party's claims are objectively frivolous-in view of the facts or law-and then, if they are, whether the person who signed the pleadings should have been aware that they were frivolous; that is, whether he would have been aware had he made a reasonable inquiry. Worldwide Primates, Inc. v. McGreal, 87 F.3d 1252, 1254 (11th Cir. 1996). Sanctions are warranted when the claimant exhibits a deliberate indifference to obvious facts. Baker v. Alderman, 158 F.3d 516, 524 (11th Cir. 1998). The purpose of Rule 11 sanctions is to reduce frivolous claims, defenses, or

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CASE NO.: 6:10-CV-1713-CEH-KRS motions, and to deter costly meritless maneuvers. Sada v. City of Altamonte Springs, 2012 U.S. Dist. LEXIS 18532 (M.D. Fla. 2012), citing Massengale v. Ray, 267 F.3d 1298, 1302 (11th Cir. 2001). "Sanctions may be imposed on the attorney, law firm, or party if Rule 11 is violated, the offending party is provided with an opportunity to withdraw the objectionable pleading and fails to do so, and a motion for sanctions is filed with the court." Lee v. Mid-State Land & Timber Co., Inc., 285 F. App'x. 601, 608 (11th Cir. 2008). The Plaintiff was asked on March 7, 2012 to withdraw his Reply Brief [D.E. 115] and as detailed more fully below, sanctions are warranted in the present case as the Plaintiff exhibited deliberate indifference to the obvious facts in the Plaintiffs own medical records and the approved medical cure provided in relation the lumbar spine / lower back complaints and detailed in the Plaintiffs own medical records. The Plaintiff received the extensive treatments to his lower back / lumbar spine from the treating physicians and medical professionals at the Back Center which was the medical provider that the Plaintiffs attorney insisted upon. By signing the Reply Brief [D.E. 115] Plaintiff violated Rule 11 by: (1) Presenting false assertions related to failure to treat the lumbar / lower back in order to harass BEYEL by using the false assertions to succeed on a motion to compel punitive damages discovery (improper purpose and as harassment); Presenting false legal and factual arguments in support of Plaintiffs claim for punitive damages; and, Presenting factual contentions that have no evidentiary support as evidenced by the Plaintiffs own medical records.

(2) (3)

B. THE MISREPRESENTATIONS MUST BE VIEWED IN THE LIGHT OF THE PLAINTIFFS ASSERTIONS MADE IN FILINGS WITH THE COURT THAT DR. HYNES WAS THE TREATING PHYSICIAN FOR THE LUMBAR COMPLAINTS The fact that Dr. Hynes is now wearing two hats, as both a treating physician and testifying expert, lies at the core of the Defendant's previous Motions to Compel an independent medical examination of the Plaintiff's lower back. The Motion was denied by the Magistrate Judge based in part on the Plaintiffs representation to the Court on January 13, 2012 that Dr. Hynes was KEENANs 7

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CASE NO.: 6:10-CV-1713-CEH-KRS treating physician for the lumbar back complaints. See, DE-92, p. 7, quoted supra on p. 1. The issue is brought into focus by referencing the deposition testimony of Dr. Hynes: I noted it in the record that in about three or four months after the injuries he began complaining at least in the record but in an interview today with the patient he states clearly he complained of back complaints, but everyone focused on the neck, and he was told at one point that we couldn't treat his low back condition here so no one focused on it. I have to review that more. I haven't had a chance to really understand what we were allowed to treat, not treat. Exhibit 1, dep. of Dr. Hynes, p. 58, lines 16-25. For nearly 17 months it has been agreed between counsel that all requests for medical cure and payment authorizations for any medical cure treatments recommended by the KEENANs treating physicians at the Back Center would be forwarded to BEYELs representative, Ms. Teresa Smith of Health Systems International (HSI). The authorization procedures and payment procedures applicable to KEENAN were outlined by Teresa Smith in her e-mail of Friday October 8, 2010 @ 7:54 AM. This e-mail was also produced by Dr. Hynes at his deposition and is attached as Exhibit 3 to this response. As proof that this procedure is still in effect, Teresa Smith approved a follow-up appointment with Dr. Hynes on March 7, 2012. See, Exhibit 4, Dec. Teresa Smith; Exhibit 5, Request for Authorization from the B.A.C.K. Center. As Plaintiffs counsel would not allow Ms. Teresa Smith to speak directly with Mr. Keenan regarding his medical complaints all requests for medical cure and recommended medical treatments were sent to Ms. Teresa Smith through the Plaintiffs treating medical professionals at the Back Center. See, Exhibit 6, e-mail dated 10/1/2010 @ 2:54 PM. BEYEL, through HSI, has approved and paid for every single request for cure submitted by the Plaintiff and his treating physicians. See, Exhibit 4. Pursuant to the attached declaration of Teresa A. Smith, all medical treatments and requests for medical treatments for the Plaintiff's lower back / lumbar spine complaints have been approved and paid for. See, Exhibit 4.

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CASE NO.: 6:10-CV-1713-CEH-KRS C. THE MISREPRESENTATION THAT THE DEFENDANT FAILED TO PROVIDE CURE FOR THE PLAINTIFFS LUMBAR / LOWER BACK IS BLATANT, KNOWING AND CLEARLY SANCTIONABLE Plaintiff has made misrepresentations to the Court regarding the alleged lack of treatment [cure] for the Plaintiff's lumbar complaints. All medical treatments and recommended treatments submitted to the Defendant for the Plaintiffs medical cure have been timely approved and timely paid for. This Court should require that the Plaintiff produce a single request for medical cure that was not approved by BEYEL. Simply put, the Plaintiff cannot produce any evidence that BEYEL has failed to provide cure for any medical condition other than Plaintiff's counsel's own statements which, as detailed more fully below, are misrepresentations of the facts. [See D.E. 115]. On page 1 of the Plaintiff's Reply Brief in Support of Motion to Compel Plaintiff's counsel states, "Moreover, though not revealed in the opposition memorandum, BEYEL, failed to this day to tender cure for KEENAN's lumbar injury." See, D.E. 115, p. 1. The question this Court should be concerned with is why would Plaintiffs counsel wait to reveal such an allegation for seventeen (17) months? A simple request for medical treatment could have been forwarded to Ms. Teresa Smith and would have been approved7 with absolutely no delay. Dr. Richard Hynes was selected by Mr. Keenan and his counsel as his treating8 physician for his alleged work-related back and neck injuries. This agreement was stated clearly to the Court in the Plaintiffs own filing on January 13, 2012. See, DE-92 cited supra. Dr. Richard Hynes testified under oath: Q I guess I'm a little confused. Are you providing treatment for Mr. Keenan's lumbar condition or are you not providing treatment for Mr. Keenan's lumbar condition?

The approvals for the medical cure treatments to the Plaintiffs lower back / lumbar spine detailed in this motion have all been approved on a without prejudice basis. Dr. Hynes was also disclosed as one of the Plaintiff's testifying expert medical witnesses on numerous issues outside of his role as a treating physician. 9
8

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CASE NO.: 6:10-CV-1713-CEH-KRS A I guess it depends on how you define providing treatment. If it's mentioned in the note, yes. See, Exhibit 1, Dr. Hynes dep., p. 61, lines 1-7. Dr. Hynes deferred to his treating notes with regard to any medical treatments of the Plaintiff's lumbar condition and more importantly his answer was not no. Furthermore, a treating note from the Back Center DOS 04/21/2011 written by Dr. Richard Hynes states, "With respect to his low back, he is restricted, as he still has a disc herniation that has been fairly well controlled at this point with therapy, mild medication, and avoidance of significant bending and lifting." See, Exhibit 8, Back Center treating notes DOS 04/21/2011. The medical treatment plan for the Plaintiffs lower back / lumbar complaints was to avoid surgery on the lower back through physical therapy as detailed by Dr. Hynes. The follow-up examinations and treatments with Dr. Hynes

scheduled9, authorized and paid for by BEYEL continue to this day. The approved treatments detailed below are extensive and evidence of the blatant nature of the Plaintiff's misrepresentations to this Court in order to fabricate a punitive damages claim. Dr. Hynes' treating notes and the treating notes of the other treating physicians and physical therapists are attached to this motion as Exhibits 7 and 8.10 As detailed in the medical reports issued by Dr. Hynes and the Back Center, the Plaintiff did not initially complain of lower back pain to any of his treating physicians11 but rather complained of "neck and left upper extremity pain." See e.g., Exhibit 7, Back Center treating notes DOS 08/30/2010. Dr. Hynes' treating notes DOS 10/08/2010 also reflect that the Plaintiff complained of ".pain into the neck, shoulder and left arm.He describes thoracic pain." See, Exhibit 7, Back

The most recent follow-up with Dr. Hynes was set for March 15, 2012, however, the Plaintiff has not produced any records from that follow-up and HSI confirmed that KEENAN cancelled this appointment.
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Dr. Hynes is one of the many doctors and health professionals who practice at the Back Center.

Indeed, the hearsay funneled through Dr. Hynes from the January 19, 2012 meeting between the Plaintiff and Dr. Hynes is basically a revision of the complaints that he gave to Dr. Hynes in 2010. See, Exhibit 1, p. 58. 10

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CASE NO.: 6:10-CV-1713-CEH-KRS Center treating notes DOS 10/08/2010. In the treating notes of Dr. Hynes DOS 10/08/2010 he

recommends an MRI of the lumbar spine for evaluation purposes. The MRI of the Plaintiff's spine was taken on 10/20/2010 by Dr. Richard Ramnath and the Plaintiff was seen by the Back Center again on DOS 11/02/2010 wherein the treating notes reflect that the Plaintiff was diagnosed with, inter alia, degenerative disc disease of the thoracic spine and a probable "annular tear L5 S1 level" and "lumbar degenerative disc disease L3 S1." See, Exhibit 7, Back Center treating notes DOS 11/02/2010.12 The treating notes DOS 11/06/2010 reflect that the Plaintiff complained of ".substantial injury to his neck, arm, and intermittent low back," and Dr. Hynes stated, We have also discussed Smith-Robinson ACDF, BMP on and off label use, to try to resolve the herniated disc in his neck, which is the major remaining step to try resolving his pain and return to work. We will have to determine what steps we should take for the back pain complaint as well. See, Exhibit 7, Back Center treating notes DOS 11/06/2010. The Plaintiff was then seen again, three days later, by the Back Center DOS 11/09/2010 wherein the treating notes reflect, "He reports the lower back also bothers him. It is more of an aching type pain, occasionally down to the lower

extremities.Patient also had MRI of the lumbar spine which shows bulging disc at L3-4, 4-5, 5-S1," this particular treating note also reflects that the MRI of the lumbar spine is one of the diagnostic studies reviewed as part of the recommended course of treatments detailed in the "Discussion and Plan" section of the treating notes. See, Exhibit 7, Back Center treating notes DOS 11/09/2010. Most telling in relation to the treatment plan approved and provided for the Plaintiff in relation to his lumbar complaints is the treating notes from Dr. Richard Hynes of the Back Center DOS 12/09/2010 which states:

On the face of Dr. Ramnaths MRI report of October 20, 2010 it states that the referring physician was Dr. Richard Hynes. 11

12

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CASE NO.: 6:10-CV-1713-CEH-KRS If we get enough relief from his neck condition, we are hopeful that we do not have to do any type of intervention with respect to his low back. But he understands that I cannot guarantee that, if he still has residual significant symptoms in his back, then we will have to investigate this independently. See, Exhibit 7, Back Center treating notes DOS 12/09/2010. It is clear that the initial medical treatment recommended for the lower back was the relief of the Plaintiff's neck condition through surgical intervention which was timely authorized and timely paid for by the Defendant. See, Exhibit 8, Operative Report DOS 1/11/2011. As Dr. Richard Hynes deferred to the treating notes from the Back Center in relation to the treatment of the lumbar complaints the misrepresentations made to the Court by the Plaintiff have no basis in the factual record. This factual record was completely ignored by Plaintiff's counsel when they made the misrepresentation in a record filing with the Court [D.E. 115]. Moving forward to the postoperative symptoms displayed and reported by the Plaintiff to his treating physicians we look to the treating notes from the Back Center DOS 01/25/2011 which state, "He is doing reasonably well ..We will follow up in six weeks." See, Exhibit 8, Back Center treating notes DOS 01/25/2011. Next we are informed by the treating notes from the Back Center DOS 2/22/2011 which state, "Really just complains of some neck spasms, especially when yawns," and where the treatment plan recommended and approved is clearly stated as: The patient would like to be referred to physical therapy for his postoperative therapy, as well as working on his lower back. We are hoping to avoid surgery on the lower back, if he can. We will follow up after the therapy is completed and when he sees Dr. Hynes for his next postoperative. See, Exhibit 8, Back Center treating notes DOS 02/22/2011. As further evidence of the authorized and comprehensive treatment plan for the Plaintiff's lumbar complaints we look to the physical therapy treating notes from the Back Center DOS 03/09/2011 which state: 12

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CASE NO.: 6:10-CV-1713-CEH-KRS He states though that now that his neck pain has mostly resolved he is able to notice the amount of back pain he has. He reports pain along the lumbar paraspinals region bilaterally that is 6/10 at worst and averages about 3/10. See, Exhibit 8, Back Center treating notes DOS 03/09/2011. This three (3) page document details the specific goals of the Plaintiff's physical therapy plan for the lumbar complaints and the exact plan of treatment for the physical therapy plan for the lumbar complaints. Id. This factual record was completely ignored by the Plaintiff. As further evidence of the misrepresentation made to this Court Defendant references the treating notes from the Back Center DOS 03/30/2011 which reflect the implementation of the authorized physical therapy plan for the Plaintiff's lumbar complaints put into action by the treating physicians and therapists at the Back Center and reflects that the prescribed home exercises are being completed and that total treatment time for the lower back of 55 minutes included: (1) therapeutic procedures; (2) manual therapy; and (3) modalities. See, Exhibit 8, Back Center treating notes DOS 03/30/2011. Furthermore, the treating notes from the Back Center DOS 04/01/2011 ("Electrical stimulation with moist heat to the lumbar region in order reduce pain and muscle spasms"), DOS 04/08/2011 ("He reports increased looseness felt in the low back following treatment today"), DOS 04/11/2011 ("During manual therapy the upper lumbar segment of approximately L1 was reactive with moderate to strong PA oscillations"), DOS 04/18/2011 ("At this point further PT to include manual therapy and therapeutic exercises with neck and lumbar spine in neutral position is indicated"), and DOS 04/20/2011 ("Manual techniques to increase tissue extensibility of lumbar paraspinals"). These treating notes all reflect the implementation of the authorized physical therapy plan for the Plaintiff's lumbar complaints at the Back Center. See, Exhibit 8, generally. Furthermore, a treating note from the Back Center DOS 04/21/2011 written by Dr. Richard Hynes states, "With respect to his low back, he is restricted, as he still has a disc herniation that has been fairly well controlled at this point with therapy, mild medication, and avoidance of significant 13

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CASE NO.: 6:10-CV-1713-CEH-KRS bending and lifting." See, Exhibit 8, Back Center treating notes DOS 04/21/2011. Treatment of the Plaintiff's lumbar complaints continued as outlined in the treating notes from the Back Center DOS 04/27/2011 which state: The patient continues with low back greater than cervical discomfort. He states his pain level is about 4/10 in the low backAt this point the patient has reached a functional plateauThe patient has reached maximal therapeutic benefit at this time and is therefore discharged from PT at this time. See, Exhibit 8, Back Center treating notes DOS 04/27/2011. The treating notes from the Back Center DOS 07/12/2011 once again state, "He has basically reached the appropriate level per therapy. They have basically maximized him from a therapy perspective." See, Exhibit 8, Back Center treating notes DOS 07/12/2011. The treating notes from DOS 07/12/2011 recommended a follow up in six (6) months and vocational rehabilitation. The follow up was conducted on 11/12/2011 by the Back Center as reflected in treating notes DOS 11/12/2011. Once again the Back Center's own Dr. Hynes evaluated the Plaintiff for lumbar issues, again placed the Plaintiff at MMI and recommended a follow up in six (6) months. See, Exhibit 8, Back Center treating notes DOS 11/12/2011. As detailed above, the follow up was authorized by Teresa Smith for a March 15, 2012 appointment with Dr. Hynes, however, KEENAN subsequently cancelled13 this appointment. Therefore, we do not know if the Plaintiffs lumbar is still fairly well controlled as last reported by Dr. Hynes.14 The medical records above completely refute KEENANs statement that BEYEL, failed to this day to tender cure for KEENAN's lumbar injury. See, D.E. 115, p. 1. Plaintiff has now attempted to

13 14

The reasons for the cancellation are not known.

Dr. Hynes has created a physician-patient relationship for KEENANs lumbar back complaints as he and the B.A.C.K. Center have undertaken to treat and provide medical care for Mr. KEENANs lumbar complaints and therefore Dr. Hynes and the B.A.C.K. Center must continue to exercise reasonable skill in providing the care. 14

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CASE NO.: 6:10-CV-1713-CEH-KRS retreat from this and other misstatements via his Response to BEYELs Rule 72 Objections wherein he has now stated: In short, Dr. Hynes testimony that KEENANs lumbar condition was not really treated is corroborated by the above records. KEENANs lumbar condition was only tangentially treated at the very end of his care and treatment with Dr. Hynes. BEYEL BROS. never provided timely or appropriate medical care sufficient for KEENAN to ever be diagnosed as having reached maximum medical improvement for the lumbar issue. (DE 148, pp. 17-18).15 KEENAN cannot backtrack from his statements made in the proffer by now alleging that he was never really treated for his lumbar condition or that his lumbar condition was tangentially treat ed. This is not a matter of semantics. KEENAN and his counsel have made unequivocal assertions in record pleadings that BEYEL has never tendered cure for KEENANs lumbar spine/lower back in a proffer related to punitive damages discovery. Such statements are clearly false and KEENAN and his counsel were aware that they were false at the time they were made. KEENANs refusal to withdraw these statements is sanctionable and sanctions cannot be avoided by trying to qualify these unequivocal statements. III. CONCLUSION The record is clear that the Plaintiff misrepresented that he had never received treatment for his lumbar back problems and the assertions that Dr. Hynes and the B.A.C.K. Center had never treated the Plaintiff for his lumbar complaints is simply not true. The undisputed facts and medical records show exactly the opposite and that Dr. Richard Hynes has undertaken treatment of the Plaintiffs lumbar spine and that a physician-patient relationship exists to this very day. LOCAL RULE PRE-FILING CERTIFICATION
15

Here again Plaintiff uses the word never to try and make his point similar to the statement he made in his proffer of evidence to the Magistrate Judge. (D.E. 115). 15

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CASE NO.: 6:10-CV-1713-CEH-KRS On March 28, 2012 at 3 PM, undersigned counsel held a telephone conference with Plaintiffs counsel to discuss the issues related to this motion and also exchanged several e-mails with Plaintiffs counsel. Specifically, during the telephone conference we requested that the Plaintiff withdraw DE-115 and in particular the two statements detailed above on page 1 and page 6 of DE-115, however, there was no agreement regarding any of the requested relief. WHEREFORE, Defendant BEYEL BROTHERS INC., respectfully requests that this Court sanction the Plaintiff, award reasonable attorneys fees for the research / drafting of the instant motion, strike from the docket DE-115 and strike from the pleadings the Plaintiffs claim for punitive damages and award it all other relief which this Court deems just and equitable.

Respectfully submitted, _s/Ryon L. Little_________ Ryon L. Little Fla. Bar No. 26402 DE LEO & KUYLENSTIERNA P.A. Town Center One Suite 1710 8950 SW 74th Court Miami, Florida 33156 Phone: 786.332.4909 E-mail: rlittle@dkmaritime.com Attorneys for Defendant Beyel Brothers, Inc.

CERTIFICATE OF SERVICE I hereby certify that on April 3, 2012, the foregoing document was served pursuant to Rule 11 this day on all counsel of record on the attached Service List by U.S. Mail and E-Mail. _s/ Ryon Little____________ Ryon L. Little

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Case 6:10-cv-01713-CEH-KRS Document 152

Filed 04/03/12 Page 17 of 17 PageID 4023

CASE NO.: 6:10-CV-1713-CEH-KRS

SERVICE LIST THOMAS P. KEENAN, III v. BEYEL BROTHERS, INC CASE NO.: 6:10-CV-01713-CEH-KRS Richard Rusak, Esq. Keith S. Brais, Esq. BRAIS & ASSOCIATES, P.A. Telephone:(305)416-2901 Facsimile: (305) 416-2902 E-mail: rrusak@braislaw.com Attorneys for Plaintiff

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