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

Document 152

Filed 04/03/12

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION

THOMAS P. KEENAN, III

v.

Plaintiff,

BEYEL BROTHERS, INC.,

Defendant.

IN ADMIRALTY

CASE NO.:

/

6:10-CV-1713-CEH-KRS

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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

Plaintiff’s counsel has admitted in record pleadings filed in this case that Dr. Richard Hynes of

the B.A.C.K. Center was KEENAN’s 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 BEYEL’s Motion to Compel a maximum medical improvement (MMI) examination of the

Plaintiff’s lumbar spine.

counsel stated:

Specifically, in DE-92, filed with the court on January 13, 2012, Plaintiff’s

Setting aside the fact BEYEL had the opportunity to examine KEENAN’S lumbar spine in the condition it will be at the start of trial, the Cox case is further distinguishable. In Cox, the trial court’s 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

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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

KEENAN’s lumbar complaints was made to the Court on January 13, 2012 1 and, importantly, Dr. Hynes’

deposition was taken on January 19, 2012.

Dr. Hynes met with Plaintiff’s 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 HSI 2 , but rather was a meeting related to Dr. Hynes’

status as a testifying expert witness. The result of this meeting with the Plaintiff and Plaintiff’s 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

Plaintiff’s 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

1 Plaintiff’s counsel also admitted in DE-65 filed in this case that Dr. Richard Hynes of the B.A.C.K. Center was KEENAN’s treating physician in relation to any and all complaints related to his lumbar and lower back. See, DE-65, p. 4, ¶ 8.

HSI is a medical case manager which was hired to

manage Mr. Keenan’s medical treatment on BEYEL’s behalf.

2

2 Health Systems International (“HSI”).

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deposition 3 . 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 Plaintiff’s 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 they’ve 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 Plaintiff’s 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 KEENAN’S 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 Plaintiff’s Reply Brief [D.E. 115] the Magistrate Judge entered an Order

3 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.

4 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 Plaintiff’s 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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[D.E. 116] granting the Plaintiff’s 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

some evidence in support of his prayer for punitive damages.

Keenan has proffered

D.E. 116. BEYEL moved for reconsideration of the Magistrate’s 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 Magistrate’s Order. See, Mtn. for Reconsideration, DE-

118. On March 5, 2012, the Magistrate Judge denied BEYEL’s 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 Magistrate’s Order.

BEYEL’s 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. Plaintiff’s counsel requested until noon

on April 2, 2012 to determine whether or not to withdraw DE-115.

4

Undersigned counsel also stressed

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during the telephone conference on March 28, 2012 that the Plaintiff’s representations and statements

made in DE-115 were at odds with the Plaintiff’s representations made in DE-92.

On March 30, 2012

Plaintiff’s 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 Plaintiff’s

Reply Brief [D.E. 115] otherwise the instant 5 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 Plaintiff’s 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

Plaintiff’s lumbar spine / lower back. The Plaintiff’s 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 Plaintiff’s own sworn deposition testimony, the

previous statements made by Plaintiff’s counsel in record filings on the docket and the authenticated

medical records which his treating orthopedist, Dr. Hynes, 6 deferred to in his deposition.

Plaintiff’s

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.

6 Dr. Hynes is both a treating physician and a testifying expert for the Plaintiff. Dr. Hynes met

with the Plaintiff and the Plaintiff’s 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 Plaintiff’s sworn deposition testimony) from the Plaintiff at his deposition regarding the Plaintiff’s lumbar complaints to Dr. Hynes. See, Exhibit 1, p. 58.

5

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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

6

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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 Plaintiff’s own medical records and the

approved medical cure provided in relation the lumbar spine / lower back complaints and detailed in the

Plaintiff’s 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 Plaintiff’s attorney insisted upon.

Plaintiff violated Rule 11 by:

By signing the Reply Brief [D.E. 115]

(1)

Presenting false assertions related to failure to treat the lumbar / lower

(2)

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 Plaintiff’s

(3)

claim for punitive damages; and, Presenting factual contentions that have no evidentiary support as evidenced by the Plaintiff’s own medical records.

B. THE MISREPRESENTATIONS MUST BE VIEWED IN THE LIGHT OF THE PLAINTIFF’S 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 Plaintiff’s representation to the Court on January 13, 2012 that Dr. Hynes was KEENAN’s

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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 KEENAN’s treating physicians at the Back Center would be forwarded to

BEYEL’s 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 Plaintiff’s 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 Plaintiff’s

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.

8

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C. THE MISREPRESENTATION THAT THE DEFENDANT FAILED TO PROVIDE CURE FOR THE PLAINTIFF’S 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 Plaintiff’s 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 Plaintiff’s 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 approved 7 with absolutely no delay.

Dr. Richard Hynes was selected by Mr. Keenan

and his counsel as his treating 8 physician for his alleged work-related back and neck injuries.

This

agreement was stated clearly to the Court in the Plaintiff’s 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?

7 The approvals for the medical cure treatments to the Plaintiff’s lower back / lumbar spine detailed in this motion have all been approved on a without prejudice basis.

8 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

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A I guess it depends on how you define providing treatment.

mentioned in the note, yes.

If it's

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

Plaintiff’s 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

scheduled 9 , 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 physicians 11 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

9 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.

10 Dr. Hynes is one of the many doctors and health professionals who practice at the Back Center.

11 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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Center treating notes DOS 10/08/2010.

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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:

12 On the face of Dr. Ramnath’s MRI report of October 20, 2010 it states that the referring physician was Dr. Richard Hynes.

11

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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 post-

operative 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:

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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

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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 back……At this point the patient has reached a functional plateau……The 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 cancelled 13 this appointment.

Therefore, we do not know if the Plaintiff’s lumbar is still

“fairly well controlled” as last reported by Dr. Hynes. 14

The medical records above completely refute KEENAN’s 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 The reasons for the cancellation are not known.

14 Dr. Hynes has created a physician-patient relationship for KEENAN’s lumbar back complaints as he and the B.A.C.K. Center have undertaken to treat and provide medical care for Mr. KEENAN’s 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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retreat from this and other misstatements via his Response to BEYEL’s Rule 72 Objections wherein he

has now stated:

In short, Dr. Hynes’ testimony that KEENAN’s lumbar condition was not “really” treated is corroborated by the above records. KEENAN’s 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” treated.

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 KEENAN’s 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. KEENAN’s 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 Plaintiff’s 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).

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On March 28, 2012 at 3 PM, undersigned counsel held a telephone conference with Plaintiff’s

counsel to discuss the issues related to this motion and also exchanged several e-mails with Plaintiff’s

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 Plaintiff’s 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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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

CASE NO.:

SERVICE LIST

6:10-CV-1713-CEH-KRS

THOMAS P. KEENAN, III

v.

BEYEL BROTHERS, INC

CASE NO.:

6:10-CV-01713-CEH-KRS

17