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Category: Discovery

What To Do Before The Defense Medical Exam In Florida?

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Pursuant to Rule 1.360 of the Florida Rules of Civil Procedure, the defense may request you undergo an exam by a qualified expert. This permitted because your physical condition is at issue.

 The defense will make a request specifying the time, place, manner, conditions, and scope of the defense medical exam. Your attorney must respond to the defense’s request within 30 days. Sometimes attorneys object to certain conditions of the exam. If that happens the judge must decide.

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Rights and Responsibilities

Your most important responsibility is to show-up – on time. I always remind my clients the day before the Defense Medical Exam. I want to make sure they know the time and location. If you miss your appointment for a Defense Medical Exam the court could require you to reimburse the defense for the cost of the exam. This can be very expensive – so don’t miss the appointment.

Even though you are required to attend a Defense Medical Exam, you still have rights. First, you do not have to sign anything given to you by the defense doctor without your lawyer reviewing first. Second, you do not have to discuss the liability of the case or what you and your attorney have talked about. Third, you have a right to refuse to be injected, examined without a gown, and/or undergo diagnostic testing. Also, if you are a minor you have a right to be accompanied by a parent or guardian, at all times.

After the Defense Medical Exam you have a right to request a written report of the defense doctor. This report must include the doctor’s findings, diagnosis, and conclusions.  For a copy of my firm’s Notice of Client’s Rights and Responsibilities during a Defense Medical Exam form email me at

Always Be Honest

Honesty is the most important thing to remember before a Defense Medical Exam. Exaggerating your symptoms or pain can hurt your case. Doctors are very good at uncovering an exaggeration by looking at the physiological evidence. They can compare your subjective complaints to your nerve pathways to see if they match up. If you’re complaining of pain radiating down your leg, you would expect a lumbar herniated disc. If you don’t – then the doctor will claim you are a liar.

Allow Your Lawyer To Speak To Your Family

As a personal injury attorney in Florida I like to speak to my client’s family and friends. Often times the spouse is more aware of things the client needs help with. This includes bathing, dressing, and eating. I always like to make sure these things are documented – sworn written statement.

Keep A Diary

Another thing that can help your case is to keep a diary. I usually suggest a daily log – morning and night – for at least 30 days. Your spouse should also keep a diary. A diary will tell your attorney things you would never know about you and how your family is suffering. A diary also forces those close to you to “pay attention” and “document” unusual behavior. Things like irritability, depression, lack of motivation, weight gain, etc.  If you’d like to see a copy of a diary template I use in my practice, email me at  

Client Questionnaire

On the day of the Defense Medical Exam, I give my clients a questionaire to take and complete immediately after the exam. The questionnaire asked questions about the exam. This is to be completed when the exam is still fresh in the clients mind. It can be helpful to your attorney while examining the defense doctor at deposition or trial.

Same-Day Appointment With Your Doctor

Another thing I always recommend is scheduling an appointment with your own doctor the same day as the Defense Medical Exam. Your own doctor will document your symptoms – things like muscle spasms and decreased range of motion. This will be documented the same day as the defense doctor said nothing was wrong with you.

More Information

For more information on what to do before or after a Defense Medical Exam check out some of our other personal injury articles on our firm’s website.  Also, you can subscribe to The Longo Firm YouTube channel for informative videos.

The Longo Firm, P.A.
Micah J. Longo
12555 Orange Drive, Ste. 233
Davie, FL 33330
Tel: (954) 862-3608
Fax: (954) 944-1916

Should I Tell My Lawyer About Past Accidents?

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At the initial consultation I always ask about past accidents. Sometimes I get hesitation from the client. This can be a red flag because one of the most important parts of any Florida accident case is credibility. If a client cannot generate trust with his or her lawyer, how can they expect to do so with the jury? If there is ever a time to be blatantly honest, it’s with your lawyer.

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Tell Your Lawyer Everything

Your Florida accident lawyer needs to know everything about your case. This includes your past accidents, medical treatment, and pre-existing conditions. You may think, “if I keep this information to myself, no one will ever know.” Trust me, the defense will find out. It always pays to be 100% candid with your lawyer! Generally everything you say is protected by attorney-client privilege.

I represented a gentleman severely injured in a head-on car crash.  During his deposition the defense attorney asked him if he ever used drugs. My client said, “if it’s around, I will smoke it.” The fact that my client smoked weed in the past had nothing to do with his current case, but because he was 100% honest in his response, he came across as extremely credible. Within a few weeks his case settled for the policy limits.

In another case, my opponent was extremely deceptive.  Basic discovery requests were met with extreme opposition.  This signaled he was hiding something. Low and behold I found information that severely damaged my opponent’s case. Had my opponent been candid from the beginning, I likely wouldn’t have discovered the harmful evidence. The moral of the story is tell your lawyer everything.  He or she is trained in determining what is important and what is not.  What should be disclosed and what should not. If you cannot trust your own accident lawyer, then who can you trust?

Pre-Existing Medical Conditions

Besides asking about prior accidents I also ask about prior or “pre-existing” medical conditions and injuries. You see insurance companies love to argue that the injuries were not “caused” by the accident, but a  result of a pre-existing medical condition. Florida follows the “egg-shell plaintiff rule.”  This means you take the plaintiff as you find them with all their defects (i.e. pre-existing conditions).

For example, if a 21 year old trips and falls in a parking lot they’ll usually get right up, a little embarrassed, but with no significant injuries.  That same fall to a 75 year old nets a completely different result. The 75 year old may have a broken hip and need surgery. The egg shell plaintiff rule allows the 75 year old to collect the full amount of her damages, even if the accident would not net the same result for everyone.  The point is that even if you have a prior medical condition, you still may have a case.  Because of this you should not hide your medical history from your attorney.

The reason your lawyer needs to know about your medical history is because it allows your lawyer to neutralize the potential damage. Look, it’s going to come up.  You don’t want your lawyer to find out for the first time at a deposition (or trial) that you had a prior accident with the same injuries.  If your lawyer knows in advance, he or she will have an opportunity to explain the situation. Accident lawyers hate surprises!

Full Disclosure Helps Your Case

Telling your lawyer about your past accidents and medical history often helps your case. For example, if you had an accident a few years ago for which you saw a chiropractor and had an MRI, your lawyer could obtain those records and see if your current injuries are new.  This is especially true with MRI scans. For example, if the MRI from a past accident shows a normal L5-S1 disc, but your latest MRI shows a disc herniation, then it’s more likely than not that your herniated disc was caused by the accident.  In other words, “but for” the accident you would have a healthy disc.

As a matter of practice I demand my clients provide me with their complete medical history, including the names, addresses, and telephone numbers of their primary care physician. This allows me to obtain past medical records and see if they have complained in the past about their current injuries. Again, just because they had a past accident or injury does not mean they don’t have a case.  It just means that we’ll need to argue that it’s an “exacerbation of pre-existing condition.” More often then not a prior injury will have resolved. This is especially true when the client confirms that they became symptomatic only after the accident. Again, this helps your lawyer prove “causation.”  Remember, the essential elements of a Florida accident case are:  (1) duty; (2) breach; (3) causation; and (4) damages.  By far, causation is the most difficult element to prove.  Help your lawyer by telling him or her about your past accidents and medical history.

For More Information

If you have additional questions about accident cases in Florida and whether or not you should tell your lawyer about your past accidents visit our website at and please don’t forget to subscribe to our YouTube channel!
Micah J. Longo, Esq.
12555 Orange Drive, Ste. 233
Davie, FL 33330
Tel: (954) 862-3608
Fax: (954) 944-1916

Will I Have To Disclose Facebook Photos In A Lawsuit?

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Disclose Facebook Photo LawsuitPhotos sought in a personal injury lawsuit are relevant to damage issues.  Generally,  Facebook photos are neither privileged, nor protected by any right of privacy, regardless of any privacy settings used. Because a personal injury plaintiff has put their physical and mental condition at issue, Florida courts have routinely ordered Facebook photos and video to be disclosed.

In a recent South Florida slip and fall case, a defense lawyer viewed the plaintiff’s Facebook profile before a deposition, and saw it contained approximately 1,300 photos. The defense lawyer examined the Facebook profile a few day after the deposition and noticed it listed 36 less photographs than before. The defense lawyer immediately filed a “motion to compel” and wrote to the plaintiff asking that she not destroy any more photos on her Facebook account. The defense lawyer argued that he was entitled to view the Facebook profile because the plaintiff’s slip and fall lawsuit put her physical and mental condition at issue. The trial court agreed and found that the plaintiff’s Facebook photos were discoverable.

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Broad Scope of Discovery

In Florida, the scope of discovery is broad and includes any matter that is “reasonably calculated to lead to the discovery of admissible evidence.” Further, it is not grounds for objection that the information will be inadmissible at trial. Because of this broad scope of discovery in Florida civil cases, the trial court is given wide discretion in ruling on discovery issues.

In a personal injury lawsuit where a plaintiff is claiming pain and suffering and mental anguish damages, the jury is required to look at the quality of the plaintiff’s life before and after the accident to determine the extent of the loss. From witness testimony alone, it’s hard for the jury to understand what the plaintiff’s life was like before the accident. If a picture is worth a thousand words, there is no better showing of what a plaintiff’s life was like than those photos shared through Facebook before an accident. Such Facebook photos are like a slide show created by the plaintiff before they had any reason to distort the truth for financial gain.

Facebook Privacy Settings

Facebook is a free social media site where a person creates a profile which acts as a personal homepage and may include photos, personal information, including age, education, religious and political views, relationship status, and other fun and interesting things. Once a user joins Facebook, they have opened the door to connect with “friends.” Through Facebook a user can post, share, and tag photos, videos, updates on personal lives, political rants, successes and failures, inspirational quotes, essentially anything you could possibly think of. As a result, Facebook can provide a “glory hole” of information for defense counsel in a personal injury case.

Under Florida law, postings on a Facebook account, if relevant, generally is not shielded from discovery even if the user’s privacy settings are marked “private.” Facebook’s own user agreement does not even guarantee privacy. Simply by creating a Facebook account, a user acknowledges that personal information will be shared with others, which is the purpose of social media. Even if a person sets their Facebook account to “private”, thus allowing only “friends” to see postings, there still is no reasonable expectation that the information will be kept private. For example, if a user posts a picture, anyone of that user’s “friends” could share or tag the picture for potentially the world to see.  Once a user posts a photo they lose control of the photo forever. It is common knowledge among Facebook users that the bigger circle of “friends” the more likely the posts are to be viewed.

In personal injury lawsuits the relevancy of photos generally outweighs the little privacy interest.  Under the Florida Constitution, “every natural person has the right to be let alone and free from governmental intrusion into the person’s private life.” This fundamental privacy right is broader than the privacy rights under the U.S. Constitution and ensure that people are free to “determine for themselves when, how, and to what extent information about them is communicated to others.” This becomes a little more complicated when a person voluntarily subjects themselves to litigation as in the case of a personal injury plaintiff. In this scenario, there must be some legitimate expectation of privacy before a right to privacy attaches.  Again, because the information a plaintiff “posts” on Facebook may be copied and shared by others there is generally no reasonable expectation of privacy.

Don’t Delete Your Facebook Photos

Plaintiffs in Florida personal injury lawsuits may be tempted to delete their Facebook photos while in litigation. This is a mistake. This is especially true if the opposing attorney has made a written request that you not destroy information posted on social media sites, which is becoming common practice.  This is often referred to as a “spoliation letter” or “preservation of evidence” letter. Once a party receives spoliation letter, that party has a duty to preserve the evidence.

In Florida, the trial court could give a jury instruction allowing the jury to draw an “adverse inference” from a plaintiff deleting or otherwise destroying Facebook photos that were not preserved despite opposing counsel’s request, if found to have hampered the opposing party’s ability to prove its claims or defenses. While trial courts have the authority to impose sanctions for discovery violations, it does not prevent the jury’s consideration relevant to the spoliation. An adverse inference instruction arising out of an alleged spoliation of evidence claim does not relieve a party of its burden of proof at trial.

The remedies for spoliation or destruction of evidence includes allowing the party who has been harmed to present evidence about the circumstances surrounding the spoliation, as well as instructing the jury on the inferences that may be drawn from the spoliation. In other words, the plaintiff destroyed the photographs because what they were bad for their case. Prior to the trial court exercising any level of authority due to spoliation of evidence, the court must answer three threshold questions: (1) whether the photos existed at one time; (2) whether the spoliator had a duty to preserve the photos; and (3) whether the photos were critical to the opposing party being able to prove its claims or defenses. Unlike an adverse presumption instruction, where the trial court must find the spoliator was duty-bound to preserve the evidence, an adverse inference may arise in any situation where potentially self-damaging evidence is in the possession of a party, and that party either loses or destroys the evidence.

Would You Want To See That In Court?

A good rule of thumb is don’t post anything on social media that you wouldn’t want to see in open court. Photos of you partying with your friends or competing in Cross-Fit competitions could be used against you in a personal injury lawsuit. It is best practice to stop using social media completely while your personal injury case is pending. Remember, just because your Facebook account is set to “private” does not mean it is not discoverable.  Cases have been won (and lost) in Florida based on the plaintiff’s Facebook posts. It is not worth losing your case over.

For more information about disclosure of Facebook photos in a lawsuit, and other discovery issues visit my website at

Micah J. Longo
The Longo Firm
12555 Orange Drive, Ste. 233
Davie, FL 33330
Tel: (954) 862-3608

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