IN THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY, MARYLAND
ANNA MARIE MURPHY *
Plaintiff, *
v. * CASE NO.: C-2003-87853 MT
DOUGLAS CHERVENAK, et al., *
Defendants. *
* * * * * * *
PLAINTIFF’S OPPOSITION TO DEFENDANT’S
MOTION TO COMPEL A MEDICAL EXAM
Plaintiff, ANNA MARIE BOYCE, by and through her attorneys, Ronald V. Miller, Jr., and Miller & Zois, LLC, hereby requests that Defendant’s Douglas Chervenak’s Motion to Compel A Medical Exam be denied and in support thereof states as follows:
I. FACTS
A. On January 14, 2004, Defense counsel sent correspondence unilaterally scheduling a DME for February 9, 2004 without notifying counsel with three weeks’ notice. See Defense Exhibit “A.”
B. Plaintiff’s counsel objected on February 3, 2004 (via facsimile on February 5, 2004) on the basis that Dr. Kennison is outside the subpoena power of this jurisdiction. See Defense Exhibit “B.”
C. In a good faith effort to resolve this discovery dispute without Court intervention, Plaintiff’s counsel asked Defendant’s counsel if Dr. Kennison would be willing to comply with requests for his financial information and other documents that would have otherwise been requested by way of subpoena duces tecum. See Plaintiff’s Exhibit “C.”
D. Defendant’s counsel responded via facsimile on February 20, 2004 that she called Dr. Kennison but that he had yet to return her call. See Plaintiff’s Exhibit “D.”
E. Ten days later, Defendant’s counsel apparently still has not heard back from Dr. Kennison to date.
II. ARGUMENT
As a physician practicing in Washington, D.C., Dr. Bruce Kennison is outside of this Court’s subpoena power. While Dr. Kennison resides in Maryland, he apparently is quite proficient at evading service. See Affidavit of Shawn M. Cole (Exhibit “E”), Affidavit of Antonio Pennacchia (Exhibit “F”), and Affidavit of Richard Ruth (Exhibit “G”). These affidavits demonstrate that Dr. Kennison is effective at evading service at his home and uses the fact that his office is in Washington as a shield against proper service of a Maryland subpoena.
Defendant’s request for relief rests on his claim that he was notified late regarding Plaintiff’s refusal to appear for an Dependent Medical Exam in Washington D.C. Because a DME was never ordered as required by the Court pursuant Maryland Rule 2-423, and because subjecting Plaintiff to an DME in Washington, D.C., is beyond the subpoena powers over a doctor who has historically been unwilling to comply voluntarily, Defendant’s motion fails.
There is a reason why we continue to see Dr. Kennison
listed as a defense expert time and time again. There are numerous qualified doctors right
here in Anne
Arundel County, and thousands across the state of Maryland
that the Defense could have selected to perform the DME of the
Plaintiff. The Plaintiff should not be denied the
opportunity to vigorously cross-examine Dr. Kennison on his
earnings as a professional witness and should be armed with
fee documents to use against him as to “bias.”
WHEREFORE, the Plaintiff respectfully requests this Honorable Court to deny Defendant’s Motion to Compel A Medical Exam.
Respectfully submitted,
MILLER & ZOIS, LLC
Ronald V. Miller, Jr.
Laura G. Zois
Empire Towers, Suite 615
7310 Ritchie Highway
Glen Burnie, Maryland 21061
(410)553-6000
(410)760-8922 (Fax)
Attorneys for the Plaintiff
Certificate of Service
I hereby certify that a copy of the foregoing Plaintiff’s Opposition to Defendant’s Motion to Compel A Medical Exam sent via U.S. Mail, first-class, postage prepaid, this 1st day of March, 2004, to:
Robin Finizio Kessler, Esq.
The Annapolis Exchange
1997 Annapolis Exchange Parkway
Suite 400
Annapolis, Maryland 21401
Attorney for the Defendants
IN THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY, MARYLAND
ANNA MARIE MURPHY *
Plaintiff, *
v. * CASE NO.: C-2003-87853 MT
DOUGLAS CHERVENAK, et al., *
Defendants. *
* * * * * * *
O R D E R
Upon consideration of the Defendant's Motion to Compel A Medical Exam, it is this _________ day of _________________________, 2005, by the Circuit Court for Anne Arundel County, Maryland, hereby
ORDERED, that the Defendant’s Motion is DENIED.
JUDGE
COPIES TO:
Ronald V. Miller, Jr., Esq.
Miller & Zois, LLC
Empire Towers, Suite 615
7310 Ritchie Highway
Glen Burnie, Maryland 21061
Robin Finizio Kessler, Esq.
The Annapolis Exchange
1997 Annapolis Exchange Parkway
Suite 400
Annapolis, Maryland 21401
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